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NOTES
Black Identity and Child Placement: The Best Interests of
Black and Biracial Children
Kim Forde-Mazrui
INTRODUCTION
2
Transracialadoption' increased sharply in the 1950s and 1960s.
Many factors converged to cause this increase, 3 including a rise in the
number of children in the placement system 4 and an insufficient
number of minority homes in which to place minority children.5 Beginning in 1972, however, transracial adoptions were drastically curtailed in favor of racialmatching.6 This reversal was caused in large
part by the National Association of Black Social Workers (NABSW),
which came out strongly against transracial adoption. 7 The organization's 1972 position paper stated:
1. This Note uses the term transracialadoption to refer to adoptions of Black children by
white parents. See infra note 9 for an explanation for the capitalization of the term Black
2. Margaret Howard, TransracialAdoption: Analysis of the Best Interests Standard, 59
NOTRE DAME L. REv. 503, 505-16 (1984); see also infra notes 3-5 and accompanying text. The
number of transracial adoptions tripled between 1968 and 1971. Twila L. Perry, Race and Child
Placement: The Best Interests Test and the Cost ofDiscretion, 29 J. FAM. L. 51, 109 n.199 (1991).
3. Professor Howard identifies seven factors contributing to the rise in transracial placement:
(1) a rise in the number of children entering the child-placement system due to increased awareness and reporting of child abuse, Howard, supra note 2, at 505; (2) a growing awareness of foster
care deficiencies, id. at 505-06; (3) empirical data revealing the dangers of maternal and stablefamily deprivation, id. at 506-09; (4) a dramatic decline of healthy white infants available for
adoption, id. at 509-10; (5) a reduced adherence to the policy of "matching" children with adoptive parents to whom they might have been born, id. at 510-13; (6) an insufficient number of
minority homes available for minority children, id. at 513-14; and (7) an increasing societal
acceptance of integration, which contributed to willingness of white parents to adopt Black children. Id. at 514-16.
4. Id. at 505.
5. Id. at 513-14.
6. Elizabeth Bartholet, Where Do Black Children Belong? The Politicsof Race Matching in
Adoption, 139 U. PA. L. REV. 1163, 1179 (1991) ("In 1972 this brief era of relative openness
came to an abrupt end."). In this Note, racial matching refers to the practice of preferring to
place Black children with Black parents rather than white parents. Racial matching may result
in avoiding placement with white parents even when Black parents are not immediately
available.
7. Id. at 1181 ("Adoption agency bureaucrats moved swiftly to accommodate the position
taken by the NABSW."). Howard writes, "[i]n 1972 the National Association of Black Social
Workers (NABSW) condemned transracial adoption in terms so militant that transracial adoption fell by 39 percent in a single year." Howard, supra note 2, at 517. The NABSW's position
against transracial adoption contributed significantly to the decline of the practice. James S.
Bowen, Cultural Convergences and Divergences: The Nexus Between Putative Afro-American
Family Values and the Best Interests of the Child, 26 J. FAM. L. 487, 502 (1988).
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The National Association of Black Social Workers has taken a vehement stand against the placement of Black children in white homes for
any reason. We affirm the inviolable position of Black children in Black
families where they belong physically, psychologically and culturally in
order that they receive the total sense of themselves and develop a sound
projection of their future.
..Black children in white homes are cut off from the healthy devel-
opment of themselves as Black people, which development is the normal
expectation and only true humanistic goal.
Identity grows on the three levels of all human development; the
physical, psychological and cultural and the nurturing of self identity is a
prime function of the family. The incongruence of a white family performing this function for a Black child is easily recognized. The physical
factor stands to maintain that child's difference from his family. There is
no chance of his resembling any relative. One's physical identity with
his own is of great significance....
In our society, the developmental needs of Black children are
significantly different from those of white children. Black children are
taught, from an early age, highly sophisticated coping techniques to deal
with racist practices perpetrated by individuals and institutions.... Only
a Black family can transmit the emotional and sensitive subtleties of perception and reaction essential for a Black child's survival in a racist society. Our society is distinctly black or white and characterized by white
racism at every level. We repudiate the fallacious and fantasied reasoning of some that whites adopting Black children will alter that basic
8
character.
The NABSW advances two arguments for the position that transracial placement is contrary to a Black 9 child's interests. First, it argues that a Black child needs to be raised by Black parents in order to
develop a positive racial identity.10 Second, the NABSW argues that a
8. NATIONAL ASSN. OF BLACK SOCIAL WORKERS, POSITION PAPER (Summer 1973) [hereinafter POSITION PAPER I].
9. This Note capitalizes the term Black when referring broadly to people classified as Black
in the United States, including biracial children and people with any Black ancestry. See infra
note 169. This Note does not capitalize black when referring specifically to children born to two
Black parents in order to distinguish them from biracial children. This distinction is necessary
because racial-matching policies do not distinguish between black and biracial children; there.
fore, when evaluating such policies, one should use the same racial referent. When, however, this
Note specifically addresses the placement of children born to one white parent and one Black
parent, these biracial children are distinguished from black children born to two Black parents,
For other articles capitalizing the term Black, see Bowen, supra note 7; Kimberl W. Crenshaw,
Race, Reform, and Retrenchment: Transformation andLegitimation in Antidiscrimination Law,
101 HARV. L. REV. 1332 n.2 (1988) ("Blacks like Asians, Latinos, and other 'minorities,' constitute a specific cultural group and [thus] require denotation as a proper noun."); John D.
Gregory, Juvenile CourtJurisdictionover NoncriminalMisbehavior: The Argument Against Abolition, 39 OHIO ST. L.J. 242, 266 (1978); Catharine A. MacKinnon, Feminism, Marxism, Method,
and the State: An Agenda for Theory, in 7 SIGNS: J. WOMEN IN CULTURE & SocY. 515, 516
(1982); Perry, supra note 2, at 52 n.6.
10. POSITION PAPER I, supra note 8.
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Black child needs Black parents in order to develop skills for coping
with a racist society." The NABSW argues that, because of these
concerns, transracial adoption should be abolished.12 Other, less adamant opponents of transracial placement would allow it in certain cir3
cumstances but argue that same-race placement should be favored.'
The NABSW also opposes placing biracial children with white
parents.' 4 The NABSW argues that society and those around such
children will treat them as Black and, consequently, these children
also need to identify positively as Black and cope with racial prejudice.
Therefore, the NABSW concludes, when an adoption or custody pro-
ceeding concerns a biracial child, a court or adoption agency should
favor placing the child with Black parents. The NABSW is not only
concerned with the child's interest; it also argues that transracial
placement threatens the cultural interests of Black people as a group.
The association claims that, by raising Black children to affiliate with
the dominant culture, transracial placement removes these children
from Black culture and dislocates them from the Black community.
In this way, the NABSW argues, transracial placement constitutes
"cultural genocide."' 5
Arguments such as those by the NABSW have influenced the practice of state adoption agencies and the reasoning of courts confronting
the issue of race in child-placement decisions.' 6 As a result, courts
and adoption agencies often practice a policy of racial matching
whereby they strive to place Black children with Black parents and
11. Id.; Shari O'Brien, Race in Adoption Proceedings: The PerniciousFactor,21 TULSA L.J.
485, 494 (1986).
12. See supra text accompanying note 8.
13. E.g., Bowen, supra note 7, at 529, 533. Although he argues that race should always be a
factor in child-placement determinations, id. at 522, Professor Bowen would favor transracial
placement over lengthy institutional care, especially when the Black adoptee is older, disabled, or
otherwise hard to place. Id. at 511.
Professor Twila Perry writes:
To the extent that the NABSW would support keeping a child in an institution when a
permanent home is available, or would support removal of a child from a home where she
has formed strong bonds with her caretakers to place her in a home with adults of the same
race, the position of that organization is too extreme. However, the view that emphasis
should be placed on finding Black homes for Black children is proper and reasonable, and
consistent with the view of other experts that where possible, Black children should be
placed in Black homes.
Perry, supra note 2, at 113-14.
14. See Bowen, supra note 7, at 505 n.88. This Note uses the term biracial to refer to children born to one white and one Black parent. See supra note 9 for an explanation of terminology
and capitalization.
15. Joan Mahoney, The Black Baby Doll: TransracialAdoption and CulturalPreservation,59
UMKC L. REv. 487, 501 n.85 (1991); see also JOYCE A. LADNER, MIXED FAMILIES: ADOPTING ACROSS RACIAL BOUNDARIES 76-77 (Anchor Books 1978) (1977) ("Some supporters of the
NABSW view transracial placement as a 'genocidal plot' designed to destroy the black race.").
16. Professor Carl Schneider describes the NABSW's position as "another formulation of the
[racial-matching] argument." Carl E. Schneider, Family Law ch.13 (1991) (unpublished manuscript, on file with author). Several courts have adopted this reasoning. The Supreme Court of
Pennsylvania, for example, in affirming the placement of a biracial child with Black foster par-
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discourage placement with white parents. Courts also practice racial
matching in child custody disputes between parents, preferring to
place the biracial child with the Black parent when the parents
divorce. 17
The purpose of this Note is to question whether racial matching by
courts and child-placement agencies serves the best interests of Black
children. The principle that guides this Note's analysis is that racial
matching is justified only if such a policy better serves the interests of
Black children than a policy in which race is not a factor in a childplacement determination. This Note also questions whether racial
matching serves the interests of biracial children and those of Black
people as a cultural group.
This Note does not focus on the equal protection concerns raised
by the use of race in child placement. This is not to suggest that the
Constitution is not implicated or important. Rather, by concentrating
on the interests of Black children, this Note recognizes that, unless
and until Congress 18 or the Supreme Court 19 forbids the consideration
of race in child placement, 20 many courts and agencies will continue
to
2
view the issue only with reference to the best-interests standard. '
Part I of this Note examines caselaw regarding the permissible use
of race in child custody and adoption proceedings and finds that many
courts permit the consideration of race in placing a Black child. Part I
ents instead of white grandparents, explicitly referred to the position of the National Association
of Black Social Workers. In re Davis, 465 A.2d 614, 622 (Pa. 1983).
Similarly, in In re R.M.G., 454 A.2d 776, 791 (D.C. 1982), the court stressed the importance
of evaluating "how each family's race is likely to affect the child's development of a sense of
identity, including racial identity." In defining identity, the court included "survival skills that
enable the child to cope with the world outside the family." 454 A,2d at 787 (citation omitted).
In Drummond v. Fulton County Dept. of Family & Children's Servs., 563 F.2d 1200, 1205 (5th
Cir. 1977), cert. denied, 437 U.S. 910 (1978), the court referred generally to the professional
literature as stressing the importance of having parents that could cope with problems of racial
identity.
17. See infra section I.C.
18. Senators Carol Moseley-Braun (D-Ill.) and Howard Metzenbaum (D-Ohio) have recently introduced a bill that would prohibit any agency receiving federal funds from denying or
delaying the placement of a child on account of race, color, or national origin. See S. 1224, 103d
Cong., 1st Sess. (1993). Representative Luis V. Gutierrez (D-Ill.) has introduced a similar bill in
the House that would prohibit delay or denial of placement on such grounds only if a "matching" parent is not available. See H.R. 3307, 103d Cong., 1st Sess. (1993). The NABSW has also
advocated enactment of "National Black Heritage Child Welfare Act," which would mandate
preferences for placing minority children in minority homes. Bartholet, supra note 6, at 1182
n.43 (citing NATL.
ASSN. OF BLACK SOC. WORKERS, INC., PRESERVING BLACK FAMILIES: RESEARCH AND ACTION BEYOND THE RHETORIC 49 (1986)).
19. Arguably, the Court has forbidden the use of race in child placement. See Palmore v.
Sidoti, 466 U.S. 429 (1984), discussed infra notes 24-36 and accompanying text. Read narrowly,
however, Palmore only forbids a court from removing a child from her biological parent solely
because of the risks of societal hostility to the parent's interracial marriage. See infra section I.A.
20. The term child placement refers to adoption proceedings and child custody
determinations.
21. See infra note 23 and accompanying text.
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further finds that courts and agencies view a biracial child as Black
and, consequently, favor placing a biracial child with her Black parent
after a custody dispute and with Black parents in the adoption context. Part II considers various ways in which the use of race in the
placement process harms Black children. Part II concludes that, even
assuming that transracial placement entails risks, the harms of racial
matching - both in the adoption and custody context - counsel
against race-conscious placement. Part III evaluates the assumptions
underlying the NABSW's position against transracial placement. It
first considers the interests of Black children generally and concludes
that not only is there insufficient evidence that transracial placement
harms Black children, but transracial placement may also carry its
own benefits over inracial placement. Part III then focuses on biracial
children and finds that additional reasons support the abandonment of
Black-preferred placement for these children. Finally, Part III considers the interests of Black people as a group. Contrary to the position
of NABSW, this Part argues that transracial placement does not
threaten Black culture and may in fact contribute to Black culture's
ability to survive and adapt.
This Note concludes that, in light of the harm caused by racial
matching and the benefits offered by transracial placement, the use of
race in the child-placement process is not justified. Courts and agencies should instead limit child-placement determinations to nonracial
criteria. Alternatively, if courts or agencies insist on considering race,
the perceived risks involved in transracial placement, the costs of racial matching, and the benefits of transracial placement should inform
their decisions.
I.
CASELAW CONCERNING RACE IN CHILD CUSTODY
AND ADOPTION
When considering the placement of a child, the states generally
charge courts with protecting the best interests of the child. 22 The
courts have great discretion over the factors to consider and the
weight to attribute to each. 2 3 Many courts consider race when placing
22. For a list of state child-placement statutes setting forth the best-interests standard and
the criteria by which courts should apply it, see Robert H. Mnookin, Child-Custody Adjudication: JudicialFunctions in the Face of Indeterminacy, 39 LAw & CONTEMP. PROBS., Summer
1975, at 226, 236-37 nn.45-47; see also Palmore,466 U.S. at 433 ("In common with most states,
Florida law mandates that custody determinations be made in the best interests of the children
involved.") (citation omitted); Compos v. McKeithen, 341 F. Supp. 264, 267 (E.D. La. 1972)
("In all jurisdictions the welfare and best interests of the child are paramount in both adoption
and custody proceedings."); cf. Bartholet, supra note 6, at 1237 ("Adoption laws throughout this
country provide that agencies are to make children's interests paramount in placement
decisions.").
23. See Mnookin, supra note 22, at 233. Factors relevant to a child's best interests include
the need for a permanent home, continuity of relationships, Perry, supra note 2, at 84, and the
ability of the parents to provide care and education. In re R.M.G., 454 A.2d 776, 794 (D.C.
1982) (Mack, J., concurring).
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a child. The issue of race in child placement arises primarily in three
situations: (1) when a divorced parent sues to gain custody because the
custodial parent remarries interracially; (2) when parents of different
races both seek custody following divorce; and (3) when a Black child
is placed for adoption.
This Part examines caselaw regarding the permissible use of race in
these child custody and adoption proceedings. It does not attempt to
review all available caselaw, but only to illustrate a typical approach
taken by courts that engage in racial matching. Section L.A considers
the issue of race in custody-modification proceedings based on the interracial remarriage of a white child's custodial parent. Although this
type of case is not the focus of this Note, it is the only context in which
the Supreme Court has considered the use of race in child placement.
This section concludes that the Supreme Court's holding in Palmore v.
Sidoti,24 while limiting the use of race in custody modifications, did
not clearly foreclose its consideration in such proceedings. Moreover,
Palmore has left unresolved the issue of race in adoption and custody
determinations other than when a white parent remarries interracially.
Section I.B examines cases involving Black children in the adoption context and concludes that, while race may not be the sole or
controlling placement factor, many jurisdictions allow or require
courts and agencies to consider race when placing Black children.
Section I.C looks specifically at custody and adoption cases involving
biracial children. It concludes that most courts addressing the placement of biracial children find that such children should be placed with
Black parents.
A.
Custody Modification Based on the InterracialRemarriage of
the CustodialParent
The Supreme Court addressed the use of race in child placement in
Palmore v. Sidoti.2 5 Melanie Sidoti, a three-year-old white girl, was
placed with her mother when her white parents divorced in 1980.26
Subsequently, Melanie and her mother began to live with a Black man
whom her mother eventually married. 27 Sixteen months following
Melanie's placement with her mother, her father sought a change of
custody based on "changed conditions. ' '2 8 In particular, her father
24. 466 U.S. 429 (1984).
25. 466 U.S. at 429.
26. 466 U.S. at 430.
27. 466 U.S. at 430.
28. 466 U.S. at 430. As one commentator states:
Although the standard for modifying custody varies from state to state, the most common
standard is a substantial change of circumstances, coupled with a showing that the best
interest of the child will be served by the modification. The substantial change usually must
be with the custodial parent or the child; a change of circumstance of the noncustodial
parent is not enough by itself to warrant modification.
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objected to the interracial marriage of Melanie's mother.29 The
Florida trial court entered an order transferring custody of the child to
the father. The trial court relied exclusively on the interracial marriage, 30 which, that court concluded, would subject the child to racial
31
hostility.
The U.S. Supreme Court reversed. Writing for a unanimous
Court, Chief Justice Burger recognized the importance of protecting
the best interests of the child. 32 He further acknowledged that
"[t]here is a risk that a child living with a stepparent of a different race
may be subject to a variety of pressures and stresses not present if the
'3 3
child were living with parents of the same racial or ethnic origin."
Nonetheless, the Court stated, equal protection forbids a court from
considering "the reality of private biases and the possible injury they
might inflict" in removing a child from the custody of her biological
parent.34 Therefore, the Court held, Melanie should have remained
with her mother.
Palmore seemingly made clear that courts may not base custody
decisions on the existence of an interracial marriage. 35 Read narJeff Atkinson, It All Comes Down to the Best Interestof the Child, FAM. ADVOC., Winter 1990, at
34, 35; see, e.g., Boone v. Boone, 565 P.2d 337, 338 (N.M. 1977) (stating that a party seeking
change of custody must prove a material change in circumstances).
29. Palmore,466 U.S. at 430-31.
30. The court order stated that "'there is no issue as to either party's devotion to the child,
adequacy of housing facilities, or respectability of the new spouse of either parent.'" 466 U.S. at
432 (citation omitted). It is clear, wrote Chief Justice Burger, that the trial court's decision
"would have been different had petitioner married a Caucasian male of similar respectability."
466 U.S. at 432.
31. 466 U.S. at 431. The Florida appellate court had affirmed the trial court order without
opinion. Palmore v. Sidoti, 426 So. 2d 34 (Fla. Dist. Ct. App. 1982).
32. "The State, of course, has a duty of the highest order to protect the interests of minor
children, particularly those of tender years.... The goal of granting custody based on the best
interests of the child is indisputably a substantial governmental interest ....
" 466 U.S. at 433.
33. 466 U.S. at 433.
34. 466 U.S. at 433.
35. Before Palmore,several courts, on their own initiative, refused to modify custody because
of the interracial remarriage of the custodial parent. See, e.g., DeLander v. DeLander, 37
U.S.L.W. 2139 (Cal. Super. Ct. Aug. 14, 1968) (stating that an interracial relationship in and of
itself is irrelevant); In re Marriage of Kramer, 297 N.W.2d 359, 362 (Iowa 1980) (stating that the
only relevance an interracial relationship might have is possible harmful effects on the emotional
welfare of children, but finding that race in this case had no bearing on that issue); Edel v. Edel,
293 N.W.2d 792, 796 (Mich. Ct. App. 1980) (holding that the trial judge committed error in
determining child custody in a divorce case by considering the mother's association with a person
of a different race); Boone v. Boone, 565 P.2d 337, 339 (N.M. 1977) (holding race alone cannot
form the basis of a custody modification); Pennsylvania ex rel. Myers v. Myers, 360 A.2d 587
(Pa. 1976) (stating that a nonmarital relationship of the mother, irrespective of race of her paramour, is irrelevant absent a showing that the relationship adversely affected the children; stating
that problems related to racial identity are inapplicable in custody proceedings); Commonwealth
ex rel. Lucas v. Kreischer, 299 A.2d 243 (Pa. 1973) (stating that the interracial marriage of the
mother does not warrant denial of custody when no evidence is presented that the children would
suffer); In re Custody of Temos, 450 A.2d Ill (Pa. Super. Ct. 1982) (stating that race is not a
consideration, concern, or factor).
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rowly, however, the Court's holding - that race may not be the sole
factor in a decision to remove a child from her natural mother 36 does not clarify whether race can play a role in some child-placement
contexts. For example, the Supreme Court of Kentucky in Holt v.
Chenault37 held that, although the trial court may not consider societal hostility toward a white mother's interracial remarriage, the
"child's emotional reaction to her mother's marital circumstances may
enter into deciding what is in the best interest of the child."' 38 Thus
the decision in Palmore did not clearly forbid the consideration of a
parent's interracial remarriage when the child, rather than the community at large, objects to the marriage. In other child-placement
contexts, such as adoption proceedings and custody disputes between
parents of different races - contexts in which additional issues of the
child's racial identity and coping skills arise - Palmore provides even
less guidance.
B. Black Children and TransracialAdoption
The question of race also arises when agencies and courts place
Black children for adoption. This section illustrates the approaches
some courts have taken in deciding how much weight to place on race
in a best-interests determination. 39 The cases demonstrate that, while
courts differ in their approach to the proper role of race in adoption
40
proceedings, many courts permit the consideration of race.
The use of race by state agencies and courts when placing a child
raises questions concerning the rights of the children and prospective
42
4
adoptive parents under the Equal Protection Clause. In re R.M. G.
illustrates two approaches to addressing these concerns. A one-judge
plurality held that consideration of race in adoption is subject to strict
scrutiny; courts and agencies can only consider race if necessary to
achieve a compelling government interest. In this case, a white foster
couple raised a Black child for the first three years of her life. When
the foster parents sought to adopt the child, the Black paternal grandmother challenged the adoption by claiming that, because the child
was Black, she should be placed with her. The trial court removed the
child from her home and placed her with the grandmother. The ap36. 466 U.S. at 432, 434.
37. 722 S.W.2d 897 (Ky. 1987).
38. 722 S.W.2d at 898 (emphasis added).
39. Cases involving biracial children are included in this section because the courts' reasoning applies to Black children generally. The next section deals more specifically with biracial
children in the context of custody disputes.
40. For a collection of such cases, see Perry, supra note 2, at 55 n.8 (citing cases); see also
DeWees v. Stevenson, 779 F. Supp. 25, 28 (E.D. Pa. 1991); Gloria G. v. State Dept. of Social &
Rehabilitation Servs., 833 P.2d 979, 986 (Kan. 1992).
41. U.S. CONST. amend XIV, § I.
42. 454 A.2d 776 (D.C. 1982).
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pellate court accepted the trial court's policy of preferring to match
children with families of the same race. In looking out for the best
interests of the child, the court held that race could have a determinative impact on child placement.4 3
The concurring judge presented an alternative view that "s[aw] no
need to reach the constitutional issue of equal protection." 44 "We are
... not faced with a statutory scheme separating persons solely on the
basis of racial classifications or an affirmative action program allegedly
giving preference on the basis of racial classifications. '45 He argued
that a court does not infringe upon equal protection concerns when it
considers race simply as one of many factors that bear on the child's
best interests. He criticized the plurality and dissent's debate over the
appropriate constitutional scrutiny, observing that, "[w]hile my colleagues are quibbling about 'strict scrutiny' and 'intermediate scrutiny,' a little girl is reaching school age under the care of the only
'46
parents she has eve[r] known."
While permitting the use of race in child placement, courts have
ruled that race may not be the sole factor in placing a child for adoption. For example, the court in Compos v. McKeithen 47 invalidated a
48
state statute that categorically prohibited transracial adoption.
Finding such a racial classification "constitutionally suspect," the
court invalidated the law under the Equal Protection Clause,4 9 determining that no permissible state objective existed because foster care
or institutional life is not always preferable to transracial placement.5 0
In dicta, the court left open a limited use of race. The court regarded
"the difficulties inherent in interracial adoption as justifying consideration of race as a relevant factor in adoption, [but] not as justifying race
' 51
as the determinative factor.
The Fifth Circuit in Drummond v. Fulton County Department of
Family & Children'sServices5 2 also held that race cannot be determinative in the sense, as the Compos court seemed to say, that race cannot serve to deny a transracial placement automatically. The
Drummond court did, however, permit race to determine a placement
43. 454 A.2d at 791-92. The court did state, however, that race should be a determinative
factor only when opposite race families are unable to provide the child with a sense of identity.
44. 454 A.2d at 794 (Mack, J., concurring).
45. 454 A.2d at 794-95 (Mack, J., concurring) (citations omitted).
46. 454 A.2d at 795 (Mack, J., concurring).
47. 341 F. Supp. 264 (E.D. La. 1972).
48. The statute read: "A single person over the age of twenty-one years, or a married couple
jointly, may petition to adopt any child of his or their race." LA. REV. STAT. ANN. § 9:422
(1950), cited in Compos, 341 F. Supp. at 264.
49. 341 F. Supp. at 266, 268.
50. 341 F. Supp. at 266, 268.
51. 341 F. Supp. at 266.
52. 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910 (1978).
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in the sense that, but for consideration of race, the placement would
have been different. Timmy, a biracial child, 53 was placed with Robert
and Mildred Drummond, a white foster couple, when he was one
month old. Within a year, the Drummonds applied to adopt Timmy.
The agency resisted. After Timmy had been in the Drummond home
for nearly two years, the agency denied the Drummonds' petition because, although they did not have a Black home in which to place
Timmy, they intended to find a Black home for him. The Drummonds
brought suit alleging, in part, that the agency's consideration of race
denied both Timmy and them equal protection. Although it found the
Drummonds qualified in other respects, the trial court refused to enjoin the agency from removing Timmy from the Drummonds.
Sitting en banc, the Fifth Circuit upheld the trial court's decision
to give substantial weight to race in removing Timmy. Because of the
"'difficulties inherent in interracial adoption,'" the court allowed the
use of race to "avoid[ ] the potentially tragic possibility of placing a
child in a home with parents who will not be able to cope with the
child's problems."' 54 In fact, the court held, race can be decisive "if it
is the factor which tips the balance between two potential families,
where it is not used automatically.15 5 Thus, race can be the deciding
factor in a close case.
C. BiracialChildren and Custodial Placement
The issue of race also arises in custody disputes between the parents of a biracial child. Despite the historical hostility in the United
57
States toward interracial marriages, 5 6 their frequency is increasing.
58
Consequently, the number of biracial children is also increasing. As
these children become the subject of custody and adoption proceedings, the issue of race presents itself more frequently. Courts must
decide not only whether to consider race, but also which race to label
the biracial child. Courts that have confronted this issue often con53. Except for a passing observation that, "as Timmy grew older he would retain the characteristics of his black father," 563 F.2d at 1204, the court approached the case as one concerning
the placement of a black child. See supra note 39.
54. 563 F.2d at 1205.
55. 563 F.2d at 1205.
56. Until the 1960s, several states had laws prohibiting interracial marriages. See Loving v.
Virginia, 388 U.S. 1, 6 n.5 (1967) (citing statutes of 15 states); see generally Walter Wadlington,
The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 VA. L, REV.
1189 (1966) (discussing the development of antimiscegenation statutes in Virginia). In Loving,
the Supreme Court of the United States declared laws prohibiting interracial marriages unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
57. The number of black-white interracial marriages increased from 65,000 in 1970 to
167,000 in 1980 to 218,000 in 1988. See Perry, supra note 2, at 52 n.4.
58. One author asserts that, in 1984, there were approximately one million mixed-race children. Kathi Overmier, Biracial Adolescents: Areas of Conflict in Identity Formation, 14 J.
APPLIED SOC. SCI. 157, 158 (1990).
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elude that a biracial child is better placed with Black parents.5 9
An early case that addressed a biracial custody dispute is Ward v.
Ward.60 The Ward court granted custody of biracial daughters to
their Black father instead of their white mother. The court stated that
"[tihese unfortunate girls, through no fault of their own, are the victims of a mixed marriage and a broken home. They will have a better
opportunity to take their rightful place in society if they are brought
court considered the biup among their own people." 61 Evidently, the
62
racial children's "own people" to be Black.
While Ward may be outdated in its language, 6 3 courts and placement agencies continue to subscribe to its assumption that courts
should treat biracial children as Black. Farmerv. Farmer,64 for example, involved a custody dispute between a white mother and a Black
father. Although, due to other factors, the court granted custody to
the white mother, it did consider the biracial heritage of the child.
The court stated that "[a]ll agreed that the child of this interracial
union, with evident black physical characteristics, however subtle, will
be perceived by society at large as a black child. Such a child can be
expected to endure identity problems, which can be exacerbated in her
because of the mixed racial heritage."' 65 The court concluded that a
Black parent would better understand the identity problems of a biracial child than a white parent.
The Pennsylvania Supreme Court, in In re Davis,66 actually held
that the trial court erred by not taking race into account. In this case,
white maternal grandparents sought custody of their biracial
grandchild. The trial court awarded custody to Black foster parents
primarily because they also had custody of the child's siblings. In reviewing the trial court testimony, the appellate court found that others
would perceive the biracial child as Black and therefore the child
should be placed in the Black foster home. The court held erroneous
the trial-court's failure to consider the harmful consequences of plac59. See, e.g., Drummond v. Fulton County Dept. of Family & Children's Servs., 563 F.2d
1200 (5th Cir. 1977), cert. denied, 437 U.S. 910 (1978); Fountaine v. Fountaine, 133 N.E.2d 532
(Ill. 1956); Farmer v. Farmer, 439 N.Y.S.2d 584 (Sup. Ct. 1981); Ward v. Ward, 216 P.2d 755
(Wash. 1950); see also Perry, supra note 2, at 65 ("[S]ome courts automatically assumed it would
be proper for [biracial] children, who would be defined by the society as Black, to be raised by the
Black parent.").
60. 216 P.2d 755 (Wash. 1950).
61. 216 P.2d at 756 (emphasis added).
62. Without explanation, the court concluded that children of the mixed marriage are Black.
"He is colored; she is white.... Both children are colored." 216 P.2d at 755.
63. Ward was repudiated by the Washington Court of Appeals in Tucker v. Tucker, 542 P.2d
789 (Wash. Ct. App. 1975).
64. 439 N.Y.S.2d 584 (Sup. Ct. 1981).
65. 439 N.Y.S.2d at 586.
66. 465 A.2d 614 (Pa. 1983).
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ing the "black" child with white custodians. 67
When confronted with the placement of black or biracial children,
many courts permit consideration of race to a certain degree. They
intend these racial-matching policies to serve the best interests of the
children. The next Part of this Note argues, however, that such policies injure the very children they are designed to protect.
II.
THE PSYCHOLOGICAL COSTS OF CONSIDERING RACE IN THE
CHILD-PLACEMENT PROCESS
This Part examines the psychological costs to individual Black
children when courts and agencies practice racial matching. The
child-placement process consists of two dependent stages: the stage
during which state adoption agencies alone handle the process and the
stage during which parties request the courts to intervene. For custody disputes between divorcing parents, the judicial process usually
represents the only stage in the placement process. Section II.A considers the initial stage, which only involves adoption agencies and prospective adoptive parents. Racial-matching policies at this stage cause
unnecessary delays in placing black and biracial children in permanent
homes, and these delays, as a consequence, seriously decrease the children's chances of permanent placement. In addition, adoption agencies may take these children from white foster parents, who have cared
for the children for months or years, in order to prevent the white
parents from adopting them.
Section II.B considers the costs of racial matching in judicial proceedings concerning adoption and custody. Considering race causes
two problems. First, courts tend to overemphasize the importance of
race. Although courts profess to treat race as only one of many factors influencing their decisions, they often rely on race as the primary
or dispositive basis for placement decisions. Second, by including race
in a best-interests proceeding, courts encourage litigation over the issue of how the court should consider race. While litigation generally
can be traumatic for children, litigation over racial identity particularly threatens the welfare of Black children. This Part concludes
that, even if Black children derive some benefit from having courts and
agencies take race into account, the attendant costs of the process to
the children involved supports the exclusion of race as a placement
consideration.
A. Racial Matching by Adoption Agencies
Professor Elizabeth Bartholet has conducted extensive research
into the prevailing practices of adoption agencies responsible for plac67. Because the trial court had granted custody to the Black foster parents, the state supreme
court found the error to be harmless.
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ing Black children. 68 Adoption agencies, according to Bartholet, typically practice racial-matching policies. 69 These policies cause delays
in permanent placement. 70 Because Black children represent a dispro-
portionately high number of children in need of homes, 71 they wait up
to twice as long for permanent homes as white children wait. 72 In
addition, a higher proportion of Black children are never placed. 73 An
insufficient number of Black families are available for these waiting
Black children, while many white families are available to adopt
74
them.
By avoiding placement with white parents, racial-matching poli75
cies cause and exacerbate delays in the placement of Black children.
As Bartholet observes, if no same-race family is available, adoption
agencies "typically ... hold[ ] black children in foster or institutional
care for significant periods of time after they are or could be free for
adoption. '
76
Adoption agencies often resist transracial placement due
to procedural disincentives and political pressure, 77 even after mandated waiting periods for finding Black homes have expired. 78 Indeed,
in many agencies, policies against transracial placement are virtually
68. For a full account of her research and findings, see Bartholet, supra note 6, at 1163-256.
69. Id. at 1183-200.
70. Id. at 1201-07.
71. Although Black people and people of color represent approximately 12.3% and 17% of
the total population, Black children and children of color represent an estimated one-third
(34.1%) and one half (47.5%) of children waiting for homes. Id. at 1187 n.61, 1201-02 n.99.
72. "A recent study found that minority children waited for an average of two years, compared to an average one year wait for non-minorities." Id. at 1201; Tee also id. at 1201 n.102.
73. The placement rates of Black children are 20% lower than those of their white counterparts. Id. at 1201.
74. Id. at 1202 n.103, 1203. One study by the Child Welfare League found a large number of
minority children waiting long periods for placement, a large number of white parents waiting to
adopt, and a limited number of minority parents applying to adopt. Id. at 1202 n. 103. But see
NATIONAL ASSN. OF BLACK SOCIAL WORKERS, POSITION PAPER ON TRANSRACIAL PLACE-
MENTS (1986) (arguing that the historic scarcity of Black adoptive parents stems from the failure
of the child welfare system to recruit Black families). Whether sufficient Black families could be
found is dubious. See Howard, supra note 2, at 513-14; supra note 72. Even if Black homes
could be found with special efforts, the question remains whether such efforts involving expenditures of limited resources are necessary for the interests of Black children.
75. "Informed observers of the adoption scene - people who know the [racial-matching]
policies and see them in operation - believe there is a strong causal connection between the
policies and the delays and denial of placement that minority children face." Bartholet, supra
note 6, at 1202 n.103. But see id. at 1201 n.102.
76. Id. at 1193.
77. Social workers are often required to document efforts to find Black homes before approving a white adoption. In addition, a social worker who approves a transracial placement may
incur harsh criticism from the NABSW and other transracial adoption critics. Consequently,
"[t]he overburdened and underpaid adoption worker has every incentive to avoid the multiple
troubles promised by transracial placement." Id. at 1195 (noting that the attitudes of white
adoption professionals toward transracial placement have been affected by the perceived "risks of
punishment").
78. Agency policies often specify time periods, ranging from three to 18 months, before the
agencies can consider transracial placement. Id. at 1193.
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absolute. 79 Racial-matching policies especially delay the placement of
Black children with special needs, including those who are older, dis-
abled, or otherwise difficult to place. 80 In some cases, delays result in
the denial of placement altogether. 81
When agencies delay or deny permanent placement, children
suffer:
The ravaging consequences of both institutionalization and successive foster care placements are well documented. A child deprived of an
ongoing, stable relationship with a psychological parent is likely to lack
the capacity to form deep emotional attachments or warm social relationships, and may well encounter8 2difficulties functioning intellectually
and maintaining physical stamina.
83
Thus, while the risks of transracial adoptions are largely speculative,
the costs of racial-matching policies - for the children they are intended to help - are real. Despite these children's urgent need for a
home, adoption agencies prolong the wait in an attempt to find Black
homes. Unfortunately, as one commentator notes, "[a] child who
must forego parents, whatever their color, is victimized, not benefitted,
by well-intentioned but misdirected attempts to promote racial
pride."' 84 Given these costs, agencies should abandon such attempts
unless clearly warranted.8 5
B.
Racial Matching in the JudicialProcess
This section considers the psychological costs to black and biracial
children when the judiciary, as opposed to agencies, engages in racial
matching. Section II.B.1 argues that courts tend to place more emphasis on race than the law purportedly permits. By overemphasizing
race, a court's decision fails to consider adequately other important
79. Id. at 1195; Mahoney, supra note 15, at 497 ("In practice, it appears that either the due
consideration given to race or the priority for same race placements preclude[s] transracial adop-
tions ....
).
80. Hard-to-place children include older children, children with severe disabilities, and children with emotional problems resulting from abuse or successive foster care placement. Agencies often rebuff white parents seeking to adopt such children because the agencies consider
transracial placement only as a last resort, even for these children. Bartholet, supra note 6, at
1204 & n.lll.
81. While the months and years go by the children are pushed deeper into the hard-toplace category, as they get older and accumulate what are often damaging experiences in
foster care. Delay thus puts the child at risk of yet more delay and, ultimately, the denial of
placement altogether.
Id. at 1204.
82. O'Brien, supra note 11, at 492. Professor Howard writes, "[t]he weight of current opinion is that a stable family may be the single most important factor in children's healthy emotional
development." Howard, supra note 2, at 508 (footnote omitted).
83. See infra Part III.
84. O'Brien, supra note 11, at 494-95.
85. Part III infra argues that these attempts to avoid transracial placement are unwarranted
and should be abandoned.
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factors relating to the child's best interests. Section II.B.2 argues that
the courts' willingness to consider race tends to encourage harmful
litigation over a child's placement and her racial identity.
1. Judicial Overemphasis of Race
Courts that consider race in child-placement proceedings generally
hold that race may be one of many factors forming the basis of a place-
ment decision. s6 Often, however, race becomes the primary factor on
which a court bases its decision.8 7 Several reasons may explain the
88
excessive weight courts give to race in child-placement proceedings.
One explanation stems from the subjective and discretionary nature of
the best-interests standard.8 9 Naturally, a judge will have personal
views, biases, or prejudices regarding a historically controversial issue
such as race. 90 By leaving the use of race and its relative weight to the
discretion of the court, the best-interests standard allows the judge's
own personal and cultural biases to influence her decision.91 In addi-
tion, judges may lack sufficient training to determine a child's best
interests and, especially, to evaluate the risks posed by transracial
placement. 92 Assessing a child's needs and predicting a child's future
are difficult tasks for professionals trained in childhood development,
86. See, eg., Drummond v. Fulton County Dept. of Family & Children's Services, 563 F.2d
1200, 1211 (5th Cir. 1977) ("[R]ace may be considered as 'a' factor in adoptions."), cert. denied,
437 U.S. 910 (1978); Compos v. McKeithen, 341 F. Supp. 264, 266 (E.D. La. 1972) (stating that
race is a relevant factor but cannot be determinative); In re R.M.G., 454 A.2d 776, 802 (D.C.
1982); In re Davis, 465 A.2d 614, 622 (Pa. 1983) ("IThe respective races of the participants is a
factor to be considered in a child's placement determination but, as with all factors, can be no
more than that - a factor."); see also supra section I.B.
87. See Noel Myricks & Donna L. Ferullo, Race and Child-Custody Disputes, 35 FAM. REL.
325, 325 (1986); O'Brien, supra note 11, at 487; Perry, supra note 2, at 57 ("Although the [bestinterests] rule is intended to be a multi-factor balancing test, it may often allow race inappropriately to achieve a dominant position.").
88. One writer identifies three special problems that judges have in deciding custody cases:
the vagueness and lack of guidance provided by most child-placement statutes; the human frailty
of judges, who often fall prey to their personal "value systems, cultural biases and stereotypical
beliefs"; and, finally, "the fact that judges are not trained to understand and analyze human
psychological behavior." Colleen McKinley, Note, Custody Disputes Following the Dissolution of
InterracialMarriages: Best Interests of the Child or Judicial Racism?, 19 J. FAM. L. 97, 122
(1980).
89. Perry, supra note 2, at 59-60 ("Where courts have broad discretion to consider race
under the best interests standard, it can easily become the dominant concern ....");see also
David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MIcH.
L. REV. 477, 481 (1984) (arguing that open and flexible judicial standards result in arbitrary and
overreaching decisions).
90. For example, in 1977, the Supreme Court of Pennsylvania censured Judge William F.
Potter for his remarks about the adoption of biracial children. Judge Potter was reported to have
said: "It's great when they're little pic[k]aninnies; they're very cute and everybody's a do-gooder.
But what about when they're older? When they're 14 or 15? I don't think its proper." In re
Potter, No. 82 (unpublished order, Pa. 1977), cited in Talbot D'Alemberte, Searching for the
Limits of JudicialFree Speech, 61 TUL. L. REV. 611, 631 n.117 (1987).
91. McKinley, supra note 88, at 122; Perry, supra note 2,at 60.
92. See McKinley, supra note 88, at 122.
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let alone a judge trained primarily in law. Race may provide judges
with a convenient way to avoid a careful best-interests analysis.
Whatever the reason, when courts consider race, they often ignore
other important factors and thereby risk deciding cases contrary to the
93
welfare of the child.
A court's focus on race in McLaughlin v. Pernsley,94 for example,
caused Raymond, a two-and-one-half-year-old Black boy, to suffer
deep clinical depression. An adoption agency removed Raymond
from his white foster parents with whom he had lived for two years.
Raymond was transferred to a Black foster family. After the removal,
Raymond fell into severe depression resulting from the disruption of
his relationship with his white foster parents. A federal district court
returned the child to the foster parents because it found that the state
court had impermissibly removed Raymond solely on the basis of race.
Recall also the Drummond 95 case, in which the Fifth Circuit affirmed an agency's removal of Timmy, a two-year-old biracial child,
from the home of the Drummonds, a white foster couple with whom
Timmy had lived since he was one month old. Despite the trial court's
findings that the Drummonds were qualified in all respects except
race, that the Drummonds had cared for Timmy for two years, and
that the agency had no Black home in which to place Timmy, the
Fifth Circuit upheld the removal of Timmy on the basis of race in
order to "avoid[ ] the potentially tragic possibility of placing a child in
a home with parents who will not be able to cope with the child's
problems."' 96 The real tragedy, however, is that Timmy lost the only
parents he ever knew and has since been placed in one foster home
97
after another.
The New Mexico Supreme Court, in contrast, reversed a trial
court decision that impermissibly overemphasized race in refusing to
place a white child with an interracial couple. In Boone v. Boone,98 a
white couple divorced, and the mother retained custody of the children. The father sought custody on the ground that the mother was
sexually involved with her fiancee, a Black man. The lower court
granted the petition, finding that such a relationship "was immoral, a
93. "In principle, the sole factor of race cannot be used to automatically disqualify petitioners as adoptive parents ....
But in practice, race alone can be dispositive when a court chooses
to downplay or ignore other germane considerations, indulge in generalizations, or otherwise
cover its tracks beneath an innocuous facade." O'Brien, supra note I1, at 487; see also Myricks
& Ferullo, supra note 87, at 325; Perry, supra note 2, at 59-60.
94. 693 F. Supp. 318 (E.D. Pa. 1988).
95. Drummond v. Fulton County Dept. of Family & Children's Servs., 563 F.2d 1200 (5th
Cir. 1977), cert. denied, 437 U.S. 910 (1978) (discussed supra in text accompanying notes 52-55).
96. 563 F.2d at 1205.
97. After Timmy's removal from the Drummonds, the agency eventually found a mixed-race
foster couple with whom to place him. This placement proved unsuccessful, and Timmy was
placed in yet another foster home. See O'Brien, supra note 11, at 489 n.18.
98. 565 P.2d 337 (N.M. 1977).
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bad influence on the children, and an improper atmosphere to raise
minor children." 99 Furthermore, the lower court continued, the chil1°
dren would "be better reared with members of their own race."'
In reversing the lower court, the New Mexico Supreme Court
found no evidence justifying a change of custody. A review of the
record revealed undisputed evidence that the mother had provided the
children with proper care. The children were well fed, well dressed,
clean, and happy, and they had a good relationship with their Black
stepfather.' 0 ' By failing to consider these factors and relying on race
alone, the lower court failed to protect the welfare of the children.
The Supreme Court also found that the lower court impermissibly
punished the mother for exercising her constitutional right to marry a
102
person of another race.
A case decided in the District of Columbia illustrates how judges
can implicitly overemphasize race in the face of other important factors. In In re R.M. G., 103 the trial court found the white foster parents
and the Black grandmother to be comparably qualified to raise a Black
girl °4 but granted custody to the grandmother because she was Black.
Had race not been taken into account, however, it is difficult to explain
how the trial court could have found the foster parents and the grandmother equally qualified. The child had never lived with the grandmother, while the foster parents had been the child's psychological
parents for the first eighteen months of her life. In addition, the trial
court found that the child had "bloomed enormously" due to the
"love, affection and special efforts" of the foster parents.10 5 As to the
foster parents' capacity and willingness to foster a healthy racial identity in the child, the trial court found that the foster parents had
bought preschool Black history and coloring books for their previously adopted child, a Black boy and had instituted an "affirmative
program" of fostering a healthy racial identity with him. 106 By focusing on race, the trial court failed to give adequate consideration to
these other findings.
In custody disputes between parents of different races, courts have
also placed excessive weight on race. Fountaine v. Fountaine,01 7 for
99. 565 P.2d at 339.
100. 565 P.2d at 338.
101. 565 P.2d at 339.
102. 565 P.2d at 339 (citing Loving v. Virginia, 388 U.S. 1 (1967)).
103. 454 A.2d 776 (D.C. 1982). For a discussion of the appellate court's decision, see supra
notes 42-46 and accompanying text.
104. The trial court found that both the white foster parents and the Black grandmother had
"shown love and concern for the child" and that both were "reasonably stable." 454 A.2d at
781.
105. 454 A.2d at 780 n.1.
106. 454 A.2d at 780.
107. 133 N.E.2d 532 (Ill.
1956).
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example, involved a white mother and Black father. After the divorce,
the father initially obtained custody. The mother again sought custody after remarrying. The father argued that, because he and the
children shared Black characteristics, the children would adjust to life
better if they remained with him. The judge denied the mother's peti-
tion, despite finding that "if a difference in color was not involved in
the case he would not hesitate for 'a moment in awarding custody to
the mother.' "o
The appellate court reversed on the basis that the
trial court had relied solely on race. 10 9 Elsewhere, however, appellate
0
courts have failed to correct trial courts' undue reliance on race."
Moreover, there may have been countless cases in which race over-
whelmingly determined the outcome, but the parties did not appeal.
Consideration of race harmed, not served, the interests of many of
these children.
2.
Encouragement of Harmful Custody Litigation
Professor Twila L. Perry identifies another risk of considering race
in placement proceedings: race may encourage divorcing parents to
litigate over the custody and race of their biracial child. II' Discretionary standards, as opposed to fixed rules, create incentives for parents
to litigate custody.11 2 "To the extent that race may be considered in
the court's discretion, it will encourage the parties to litigate the cus-
tody issue."' 1 3 Custody litigation, in turn, often harms the child who
is at the center of the dispute and may feel uncertainty and torn loyalties.'14 Litigation also increases tension between the parents, thus decreasing the likelihood of postdivorce parental cooperation."t 5
Postdivorce cooperation is important for children in order for them to
108. 133 N.E.2d at 534.
109. 133 N.E.2d at 534-35.
110. See, e.g., Drummond v. Fulton County Dept. of Family & Children's Servs., 563 F.2d
1200 (5th Cir. 1977), cert. denied, 437 U.S. 910 (1978); Potter v. Potter, 127 N.W.2d 320 (Mich.
1964); Ward v. Ward, 216 P.2d 755 (Wash. 1950). In Potter, a white couple divorced and the
mother remarried a Black man. In denying her custody, the trial court described her as a "young
woman who has been in serious rebellion... [whose recent history] does not give a picture of
certainty and stability." 127 N.W.2d at 326. Instead, the court placed the child with the maternal grandparents and awarded the father legal custody. In affirming the trial court, the appellate
court found no evidence that race had been considered. The dissent disagreed, observing that
"[t]he fears which form the muted thread of this whole proceeding are patently groundless" and
believed that the majority had ignored factors favoring the mother such as an attractive home, a
full-time mother, and a stepfather who was a surgeon. 127 N.W.2d at 329.
111. Perry, supra note 2, at 67-69.
112. See id. at 67.
113. See id.
114. Perry observes, "[c]hildren have an interest in not being the subjects of long and bitter
litigations to determine their custody. Many experts have expressed the view that litigated custody disputes can have a negative effect on children, often resulting in tension, uncertainty, and
feelings of torn loyalties." Id. at 63 (footnote omitted).
115. See Chambers, supra note 89, at 559 (noting that harmful costs of custody disputes
include protracted litigation and embittered litigants).
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experience a positive relationship with both parents.11 6
A custody dispute may be even more traumatic for a biracial child
than for a child born to parents of the same race. The parent who
benefits from considerations of race will likely attempt to focus the
hearing on race.11 7 This action may create tension around the very
issue over which the child is expected to have difficulty, her racial
identity."
8
The threat to parental cooperation after divorce is also particularly
worrisome for a biracial child. Positive relationships with both parents are especially important for the child of an interracial marriage in
order for her to have access to both her racial backgrounds.
19
There-
fore, by encouraging litigation over custody and race, consideration of
race by courts may harm the biracial child by limiting her access to
the noncustodial parent in the postdivorce period and thus depriving
1 20
her of half her racial heritage.
This Part has argued that black and biracial children are harmed
in various ways when courts and agencies practice racial matching.
When practiced by adoption agencies, racial matching results in harmful delays for these children and jeopardizes their chances for permanent placement. In the judicial process, consideration of race impairs
the courts' ability to consider all relevant factors appropriately and
encourages litigation. Given these concrete harms suffered by black
and biracial children, courts and agencies should abandon racialmatching policies unless the risks of transracial placement are
clearly
21
substantiated. The following Part argues that they are not.'
116. Some states explicitly include the ability of the custodial parent to promote a relationship between the child and the noncustodial parent as a factor to consider when placing a child.
Michigan's Child Custody Act of 1970, for example, was amended in 1980 to include in the list
of factors relating to the "best-interests" standard, "[tihe willingness and ability of each of the
parents to facilitate and encourage a close and continuing parent-child relationship between the
child and the other parent." MICH. COMP. LAWS ANN. § 722.23(3)(j) (West 1993); see also
Joan G. Wexler, Rethinking the Modification of Child-Custody Decrees, 94 YALE L.J. 757, 78992 (1985) (arguing that postdivorce hostility has deleterious effects on children).
117. Perry, supra note 2, at 67.
118. Litigating over race "can result in the unhappy scene of parents trading allegations
about racism, impaired racial identity, and real, perceived or invented attitudes of relatives and
grandparents about interracial relationships and interracial children." Id.
119. See infra section III.C.
120. In one study, a seven-year-old biracial child named Kevin was experiencing identity
confusion. His father was Black; his mother, with whom he lived, was white. Kevin's identity
confusion stemmed from his lack of access to his Black heritage. The mother, still angry toward
Kevin's father, prevented Kevin from communicating with his father's side of the family. Also,
Kevin's father, due to his bitterness over the divorce, did not want to see Kevin. Ruth G. McRoy & Edith M. Freeman, Racial-Identity Issues Among Mixed-Race Children, 8 Soc. WORK
EDUC. 164, 169-71 (1986). The study did not indicate whether race contributed to the bitterness
of the divorce but, if race does increase parental hostility, problems like those suffered by Kevin
would result from the inclusion of race in the divorce proceeding.
121. The question whether to attempt to match children with parents of the same race "is
not simply whether racial matching is good or bad, but also whether racial matching is better
than the alternatives." Schneider, supra note 16, at 1395. Even assuming racial matching has
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III.
[Vol. 92:925
QUESTIONING THE CASE AGAINST TRANSRACIAL
PLACEMENT
Many empirical studies indicate that transracially placed Black
22
children are as well adjusted as their inracially placed counterparts.1
The success of transracial placement revealed by these studies and the
demonstrable harms of racial matching1 23 seriously call into question
the wisdom of resisting transracial placement. Although some studies
report difficulties with transracial placement, t24 they are inconclusome justification, the costs of such policies, both in the child welfare system and the judiciary,
suggest that courts and agencies should forgo racial considerations.
122. A survey of the major studies on transracial adoption concludes that transracially
placed children seem in general to be as well adjusted as other adopted children. Bartholet, supra
note 6, at 1208 n. 120; see also Angela T. McCormick, TransracialAdoption: A Critical View of
the Courts' Present Standards, 28 J. FAM. L. 303, 316 n.116 (1989-1990).
Several studies indicate that parents of transracial adoptees typically foster a healthy sense of
racial identity and pride in their children. See O'Brien, supra note 11, at 494. The major studies
conducted on transracial adoptees - studies done by Black people and whites, by proponents
and opponents to transracial adoption - reveal substantial evidence that transracial adoptees
have a strong sense of racial identity while at the same time being fully integrated into their
families and communities. Bartholet, supra note 6, at 1208-09. There is significant support for
the conclusion that transracial adoptees are well adjusted in their schools and communities in
terms of achievement, adjustment, and self-esteem. Id. at 1209. Moreover, where transracial
adoptees have experienced adjustment problems, studies have found that the child's age at placement or prior foster care experience more likely caused problems rather than the transracial
placement. For studies finding problems relating to placement age, see Richard P. Barth et al.,
PredictingAdoption Disruption,33 Soc. WORK 227, 231-33 (1988) (documenting benefits of per-
manent adoption and finding age at placement related to adoption disruption, but finding race
difference between parent and child not related to adoption disruption); Bowen, supra note 7, at
502. For studies finding problems relating to foster care, see Howard, supra note 2, at 536 n.167.
Silverman and Feigelman report that maladjustment in transracially adopted children is due
primarily to their age at placement rather than racial differences. Bowen, supra note 7, at 502.
Professor Bowen explains the Silverman-Feigelman report as relating to the adopted children's
adjustment to adoptive parents. Bowen, supra note 7, at 502 n.69.
In his doctoral research, Professor Silverman studied Black, Vietnamese, Colombian, and
Korean children placed with white parents and compared them to inracially adopted white children. The findings suggested that race played no significant factor in the children's adjustment,
but that the longer a child remained in his or her preadoptive environment, the more the child
experienced maladjustment after adoption. Arnold R. Silverman, Transracial Adoption in the
United States: A Study of Assimilation and Adjustment (1980) (unpublished Ph.D. dissertation,
University of Wisconsin (Madison)), abstractedin 41 DISSERTATION ABSTRACTS INTL. No. 5, at
2311-A (1980).
123. See supra Part II.
124. Amuzie Chimezie, TransracialAdoption of Black Children, 20 Soc. WORK. 296, 299300 (1975) (claiming that transracial adoptees suffer peer and community rejection); Susan J.
Grossman, A Child of a Different Color: Race as a Factorin Adoption and Custody Proceedings,
17 BUFF. L. REV. 303, 329 (1968) (community rejection); see also Bowen, supranote 7, at 506 (A
NABSW report "suggests that various Blacks who grew up in white adoptive or foster homes
universally experienced identity problems. Various individuals in the group expressed fears of, or
prejudice towards, other Blacks. Another individual 'stated that she thought of herself as caucasi[a]n.
. .
even though she knows she is Black.' ").
One study found that 23% of families with transracially adopted children were "in trouble."
The study did not, however, investigate other factors that could cause adjustment problems, such
as the amount of time the children had spent in institutionalized and foster care. Moreover, the
researchers found that the 77% success rate was approximately the same as the success rate for
white infant adoptions and older-child adoptions. Howard, supra note 2, at 536-37 & n.167.
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sive.' 25 Therefore, an evaluation of racial matching should examine
the reasons for adopting such policies in the first place. Only if the
perceived risks of transracial placement are substantiated, and such
risks outweigh the demonstrable costs of racial-matching policies,
should racial matching continue.
This Part critically evaluates the case against transracial placement. Section III.A questions the argument that racial matching is
necessary to foster a positive racial identity in a Black child. Section
III.B addresses and criticizes the argument that Black parents are bet-
ter suited than white parents to teach a Black child skills for coping
with racism. Section III.C focuses on biracial children and challenges
the assumption that such children should be treated as Black and
placed with Black parents. Finally, Section III.D considers the inter-
ests of Black culture and whether transracial placement frustrates
those interests. This Part concludes that transracial placement does
not harm black or biracial children or Black culture. Instead, this
Part suggests that, in many ways, transracial placement may benefit
Black children and Black culture.
A.
Racial Identity
The NABSW argues that racial matching is necessary to foster a
positive racial identity in Black children and to give these children the
skills to cope with a racist society.126 Assuming a positive racial identity is in a Black child's best interests, this section refutes the argument
that same-race placement is necessary to accomplish this goal. Section
125. See Howard, supra note 2, at 534 n.155 ("It is, of course, impossible to define 'success'
or to measure whether it is accomplished, or to define 'cultural identity' or to determine whether
it is lost. Any researcher investigating transracial adoption must face this problem, and all of the
available data can be attacked on this point.") (citations omitted); id. at 541 ("The transracial
adoption studies have not followed the children through adolescence, so they cannot provide
definitive answers."); O'Brien, supra note 11, at 492 ("[T]he deleterious effects of interracial
adoption are not at all certain."); id. at 495 (finding insufficient data on effects of transracial
adoption from which to draw firm conclusions). In In re R.M.G., the trial court observed that
"all the experts who appeared in this matter agreed that not enough work has been done on the
subject [of transracial adoption]" and found "that little medical or scientific attention has been
devoted to this problem." 454 A.2d 776, 782 (D.C. 1982).
After an extensive investigation of available empirical studies, Professor Bartholet concludes:
Few studies ask questions designed to assess the potentially positive aspects of transracial
adoption. Almost none ask questions designed to assess the potentially negative aspects of
current matching policies. . . . [T]here have been no systematic attempts to measure the
degree to which racial matching policies result in delay in and denial of adoptive placement.
There have been no systematic attempts to evaluate on a comparative basis the experience of
children placed immediately with waiting white families to the experience of children held in
foster or institutional care on a temporary or permanent basis for same-race placement.
Bartholet, supra note 6, at 1208. But see id. at 1208 n. 119; Barth et al., supra note 122, at 231
(documenting benefits of permanent adoption and finding age at placement related to adoption
disruption, but race difference between parent and child not related to adoption disruption).
For a comprehensive review of empirical research on transracial placement, see Bartholet,
supra note 6, at 1207-26.
126. See supra note 8 and accompanying text.
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III.A. 1 discusses whether a Black child must identify with Black culture in order to maintain a positive racial identity. Section III.A.2
discusses whether a positive racial identity depends on the strength of
racial identity - that is, the extent to which being Black dominates a
child's identity. Both discussions consider the extent to which the race
of the parents determines the racial identity of the child. This section
concludes that transracial placement does not impair the healthy development of a Black child's racial identity or overall self-esteem.
1. Black CulturalIdentity
Opponents of transracial placement argue that a Black child needs
1 27
Black parents in order to develop an appropriate racial identity.
What is meant by the term racialidentity, however, is ambiguous. It
could mean simply that the child identifies as a Black person, or it
could mean something more -
namely, that the child identifies with
Black culture.1 28 It is the latter concept of Black identity as a cultural
29
concept that the NABSW argues is in a Black child's best interests.
Assuming the existence of a Black-American culture, 30 two further
questions arise: first, whether a Black child's interests are best served
by identification with Black culture; and, second, whether Black parents are necessary to foster such an identity.
As to the first question, identification with Black culture has plau-
sible benefits for Black children. 31 First, by identifying with Black
culture, a Black child may gain membership within the Black community and thereby receive support from others who share her Blackness
and value it.132 Second, identifying with Black culture may benefit
127. See, e.g., Bowen, supra note 7, at 506 n.91; Howard, supra note 2, at 538 ("Critics of
transracial adoption ....argue that white parents, no matter how hard they try, simply cannot
provide an environment in which the child can retain or develop his or her black or Indian
identity."); supra text accompanying note 8.
128. Kathi Taylor writes,
Racial identity and ethnic identity are probably the two most commonly applied [terms] and
are often used interchangeably. However, several scholars differentiate between them. For
instance, Casas (1984) argues that race is biologically determined, whereas ethnicity is "a
group classification of individuals who share a unique social and cultural heritage (customs,
language, religion, and so on) passed on from generation to generation."
Kathi E. Taylor, The Dilemma of Difference: The Relationship of the Intellectual Development,
Racial Identity, and Self-Esteem of Black and White Students to Their Tolerance for Diversity
67 (1990) (unpublished Ph.D. dissertation, University of Maryland) (citations omitted). But see
id. at 68 ("E. Smith (1989) .... conceptualizes racial identity to be a component of ethnic
identity.").
129. The NABSW's position is based in part on the belief that, "in a racist society, Black
children must not lose their cultural identity." Bowen, supra note 7, at 505.
130. For a discussion on whether Black Americans in fact share a cohesive culture, see infra
section III.D.2.
131. Besides the two benefits discussed here, Black culture may also provide a child with the
skills to cope with racial prejudice. Bowen, supra note 7, at 505. The coping skills rationale is
discussed infra section III.B.
132. "McRoy and Zurcher found that transracially adopted children develop a sense of be-
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Black children because the culture itself embodies positive statements
about being Black, and these statements enable the child to value her
race. Therefore, by identifying with Black culture, a Black child will
feel better about being Black because of the positive feelings engendered by the culture and the support received from other Black people
who, as a result of the shared cultural affiliation, accept the Black
child as a member of the group.
Certainly it is in a Black child's interest to feel positive about her
racial identity. What is less clear, however, is whether identification
with Black culture is coextensive with a positive racial identity. Being
Black, at minimum, is having a physical characteristic. 1 33 There is no
logical reason why a healthy attitude towards one's appearance re-
quires identification with an entire cultural system; a child could feel
good about being Black without identifying with Black culture. Indeed, this proposition is borne out by empirical data. Studies have
found that transracially adopted Black children who identify less with
Black culture nonetheless feel positive about being Black.'34
One risk for Black children who do not identify with Black culture
is that they may feel less comfortable associating with other Black people.' 35 If such children feel positive about their racial identity, however, why is association with other Black people necessary for the
welfare of the individual Black child? In fact, greater association with
white people may carry its own benefits. I36 Thus, a positive racial
identity, which presumably is in a Black child's best interests, need not
require identification with Black culture.
The second question is whether white parents are capable of fosterlonging and acceptance by identifying with other blacks." McRoy & Freeman, supra note 120, at
166-67.
133. Katherine Gale, Color Me a Person, CHRISTIAN SCI. MONITOR, Sept 11, 1990, at 19
("'Black' is a descriptive word that applies only to physical appearance."); Taylor, supra note
128, at 67 ("Casas (1984) argues that race is biologically determined, whereas ethnicity is 'a
group classification .......").But see Taylor, supranote 128, at 68 ("E. Smith (1989)... conceptualizes racial identity to be a component of ethnic identity."); Lena Williams, In a 90's Questfor
Black Identity, Intense Doubts and Disagreement, N.Y. TIMES, Nov. 30, 1991, at Al (" 'Aside
from skin color, there is something to being ethnically black in terms of outlook on life, values
and beliefs.'" (quoting Dr. Roderick J. Watts of DePaul University, Chicago, a consultant on
human diversity and assistant professor of psychology)).
A concept of race as a biological trait is not necessarily inconsistent with viewing race as a
cultural or ethnic identity. Society may construct certain values, attitudes, and norms of behavior around a biologically determined trait. Sex and skin color are two examples. The point of
characterizing race as a physical trait is that a Black child's physical appearance is the only
immutable aspect of her racial identity and, therefore, the only racial trait that her identity must
include.
134. Cf Bowen, supra note 7, at 500 (stating that transracially placed black children may
have as strong a self-esteem as their inracially placed counterparts but that they are less likely to
identify strongly as Black).
135. See McRoy & Freeman, supra note 120, at 166 ("[A mixed-race transracial adoptee]
may tend to prefer white friends and dates ....").
136. See infra section III.B.
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ing a Black cultural identity in a Black child. Racial-matching propo-
nents argue that Black parents are better suited to foster an identity
with Black culture.1 37 Such an argument proceeds as follows: Black
parents will transmit their own culture to their children. It may be
difficult, if not impossible, for white parents to raise their children in a
culture foreign to their own. 138 Therefore, a Black child should be
placed with Black parents in order to foster an identity with Black
culture.
Many white parents who adopt Black children, however, successfully teach these children Black culture and foster a sense of ethnic
pride. 139 At the same time, not all Black families identify with Black
culture, nor would they provide such a cultural setting for their chil-
dren. 140 White parents can provide books and music about Black culture, encourage friendships with other Black children, and encourage
participation in Black cultural activities.' 41 For those transracially
placed Black children who do not identify with Black culture, the
problem may be ignorance, rather than inability, on the parents' part
regarding how to foster a Black cultural identity. Instead of refusing
to place Black children with white parents, agencies could educate
such parents about ways to teach the children Black culture.
Concededly, teaching their children Black culture may not be an
42
easy task for all white parents. Many white parents may be unable
or unwilling143 to meet the challenge. The neighborhood or commu137. See Howard, supra note 2, at 538 (noting the position of transracial adoption critics that
white parents cannot adequately foster ethnic identity).
138. Id.
139. Bartholet, supra note 6, at 1209; O'Brien, supra note 11, at 494. But see Howard, supra
note 2, at 554 ("Concededly, ethnic identity will be diminished, even when white parents are
willing to accept help from the child welfare agency in building their black child's racial
identity.").
140. Mahoney, supra note 15, at 498 ("Some Blacks choose to live in primarily white neighborhoods and send their children to schools where they may be the only Black children.").
141. Seventy-five percent of the transracially adoptive parents studied by Simon and Altstein
made efforts to foster their child's ethnic identity through books, music, toys, and the like, and by
providing opportunities to play with other nonwhite children. Howard, supra note 2, at 539.
Speaking of her adopted "coffee-with-cream"-colored infant named Rachel, Professor
Mahoney looks ahead: "We need to have Black friends, send her to integrated schools and
provide her with toys and books that relate to her culture, not only for her sake but for ours."
Mahoney, supra note 15, at 500.
142. Before allowing a transracial placement, McRoy recommends investigating the residential setting of the prospective parents to determine the availability of Black role models, peer
groups, churches, and other cultural institutions. In addition, McRoy suggests providing postadoption consultation to transracial families to aid in developing an appropriate black identity.
Bowen, supra note 7, at 501.
143. Mahoney writes:
In the 1960s, at least some of the families that adopted Black children believed that the
way to conquer racism was to pretend that it did not exist. They treated their children as if
they were white, sent them to white schools and made little, if any, effort to provide them
with Black culture.
Mahoney, supra note 15, at 499.
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nity in which white parents live may lack opportunities for the child to
celebrate Black culture or to interact with other Black people. 144 In
addition, if the child does not experience the benefits of Black cultural
identity until later in life, white parents may not realize the importance of Black culture for the child. Moreover, although many white
parents may make commendable efforts to teach their children Black
culture, their children may not identify with Black culture to the full
extent that a child would if immersed in a Black family and Black
community.145
As a general rule, then, Black parents may be more capable of
transferring Black culture to Black adopted children. As discussed
above, however, failing to identify with Black culture is not necessarily
inconsistent with developing a positive racial identity. White parents
should be able to teach a Black child to value her identity, including
her race. Therefore, in terms of fostering a positive racial identity,
albeit not necessarily with Black culture, white parents may equally
serve the interests of Black children.
2.
Strength of Racial Identity
Another question regarding racial identity is the extent to which a
positive racial identity requires a strong racial identity. A child with a
strong racial identity is one who places a high priority on her race as a
component of her self-image. Put simply, a Black child with a strong
racial identity views her race as a more important aspect of her identity than most of her other personal attributes or characteristics. This
issue is important because studies show that many transracially
adopted Black children place less significance on their race than inracially adopted Black children. 146 In a society that emphasizes race
and often denigrates the Black race, a strong racial identity arguably
enables a Black child's self-esteem to weather the messages of inferiority she receives from others. As with a Black cultural identity, a
strong racial identity may be more likely to result from having Black
parents rather than white.
The important question, however, is the extent to which the
strength of a Black child's racial identity is in her best interests. In
fact, the same studies that reveal a less race-conscious racial identity in
transracial adoptees also show a comparable level of overall positive
144. But see id. at 498 ("Some white families choose to live and work in integrated neighborhoods and social groups.").
145. Howard, supra note 2, at 554 (conceding that transracially placed Black children will
have diminished ethnic identity despite white parents' efforts to foster racial identity).
146. See Bowen, supra note 7, at 500; McRoy & Freeman, supra note 120, at 166 ("Other
transracial adoptive parents tend to take a color-blind attitude to racial differences between the
child and family and therefore deemphasize racial identity to the child. The child in these circumstances usually acquires similar perceptions."). But see Bowen, supra note 7, at 499.
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adjustment and self-esteem. 147 A child whose self-image is less dominated by her race may be just as happy as a child whose race is central
to her being. A child's identity is multifaceted, with many attitudes,
beliefs, and characteristics composing her self-image; it is unclear why
the quality of a child's identity should depend on the emphasis placed
on any particular trait.
To illustrate the point, compare two hypothetical people. When
asked who they are, the first replies: "I am a husband and a father, a
writer, a teacher, and a musician. I am also Black, a man, and a
Methodist." The second person replies: "I am Black, and I am a doctor; I am a mother, a wife, and a Presbyterian. I also write poetry and
sing in a choir." Does the second person necessarily have a healthier
identity because race is a priority? Can one even conclude that the
second person's racialidentity is more positive? In fact, the first person may feel equally or more positive about being Black although he
gives it less significance.
Racial-matching proponents could argue that, in an ideal world,
race need not have great significance but, in reality, contemporary
American society not only places great significance on race, but is especially hostile toward the Black race. Under these circumstances, a
Black child needs not only a positive racial identity, but one that is
substantial enough to withstand the racism that characterizes much of
mainstream ideology.
One method to cope with a personal characteristic disfavored by
society, however, is to recognize its insignificance. When a child
whose Black skin is one of her most valued attributes experiences racist treatment, she must struggle against the racism to preserve her
self-esteem. If the racist message has any effect, the very center of her
identity is maligned. When, on the other hand, a child's race is merely
one of many characteristics and one of minor importance, she is less
vulnerable to racial attacks. If the message of racial inferiority affects
this child, it will certainly damage her self-esteem, but perhaps to a
lesser extent because her race accounts for a smaller proportion of her
self-image. Due to the minor role race plays in this child's identity,
she has less to protect, less that can be damaged, and less to repair.
Thus, although transracially placed Black children may in general
identify less strongly as Black, or with Black culture, than inracially
placed Black children, they may feel comparably positive about their
race and overall self-esteem. In short, it is unclear whether transracial
placement helps or harms the children's self-esteem and positive racial
identity, and therefore courts and agencies should not consider these
factors to counsel against transracial adoption.
147. See Bowen, supra note 7, at 500 (stating that transracially placed Black children may
have as strong a self-esteem as their inracially placed counterparts but they are less likely to
identify strongly as Black).
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B.
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Coping Skills
Opponents of transracial placement also argue that only Black parents can teach a Black child the "coping skills" necessary to survive in
a racist society. 148 Although often advanced as separate issues, coping
skills and racial identity are closely related. How well a Black child
copes with society depends in large part on her feelings about her race.
Thus, any discussion of coping skills necessarily involves questions of
racial identity. Unlike the previous section, however, this section discusses how a child's racial identity bears on the child's ability to cope
with the world outside. The question that courts and agencies should
consider is whether Black parents are better able to teach a Black child
how to cope with society. This Note divides coping skills into two
related components: those that enable a child to achieve interpersonal
and scholastic success and those that enable her to protect her selfesteem from potentially harmful interactions with others.
A child's achievement interests include interpersonal success and
scholastic performance. In terms of interpersonal success, transracial
placement may be harmful to the extent that transracial adoptees are
less comfortable associating with other Black children than are inracial adoptees. On the other hand, transracial adoptees tend to associate more comfortably with white children. 149 Courts and agencies
should not assume these interracial friendships are less fulfilling than
same-race friendships. As such, transracially placed children fare as
well as same-race placements with respect to the quality and amount
of interpersonal relations in their lives. In fact, because white children
are generally more numerous, they may fare better.
More remarkable are the scholastic benefits of transracial placement. 150 Rightly or wrongly, achievement in American society generally inures to those whose values and motivations track those of the
dominant culture. Black people who identify, or at least comply, with
the dominant or "white" culture generally achieve greater academic,
career, and monetary success.15 1 Similarly, Black children who identify with dominant cultural values achieve better grades and score better on scholastic measurement tests.152 In contrast, many Black adults
148. See id. at 509-11; see also In re R.M.G., 454 A.2d 776, 802-03 (D.C. 1982) (Newman,
C.J., dissenting) (discussing black children's need for "survival skills"); Bartholet, supra note 6,
at 1222 (noting that "[c]ritics of transracial adoption have claimed that only blacks can teach
black children the coping skills needed for life in a racist society").
149. See generally McRoy & Freeman, supra note 120, at 165 -66 (discussing racial self-concepts of transracially adopted children).
150. See, e.g., Bartholet, supra note 6, at 1222 n.159.
151. "[R]esistance. .. to identifying too strongly with the Black community [characterizes]
... Black adults in the workforce who have achieved some measure of success above the existing
job ceiling." Signithia Fordham, Racelessness as a Factor in Black Students' School Success:
PragmaticStrategy or Pyrrhic Victory 58 HARV. EDUC. REV. 54, 80 (1988).
152. Id. (discussing empirical study that found that high-achieving black high school stu-
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and Black children perceive academic and career ambitions as inimical
to Black culture and, consequently, reject such ambitions in the name
of ethnic loyalty.1 53 Transracial adoptees are more likely to embrace
the achievement goals of the dominant culture and, in turn, achieve
greater success in school than inracially placed Black children. Therefore, in terms of coping with the demands of academic achievement,
transracial placement is not only as good as, but arguably better than,
same-race placement.
Opponents of transracial placement might respond that, for transracial adoptees, these children obtain white friends and academic
achievement at the expense of their racial identity and self-esteem. A
Black child who denies or hides her ethnic identity in order to feign or
mimic the ways of white people rejects a part of herself, thus causing
inner conflict, confusion, and self-hatred. Especially in a society defined by a pathology of racial discrimination, a Black child needs to
connect with the Black community and celebrate her ethnic heritage.
A child can learn these necessary coping skills from Black people who
have experienced racism personally and struggled against demoralization. Only Black parents, the argument goes, can give Black children
these skills, and, therefore, Black parents are in Black children's best
interests.
The argument that adopting the dominant culture subjects a Black
child to a feeling of racial self-rejection is supported by empirical research indicating that some high-achieving Black children who act in
accordance with the dominant culture feel ambivalence toward Black
culture.1 54 A critical difference, however, between these children and
transracial adoptees is that, for these children, the dominant culture is
different from, and often contrary to, the culture of their home and
neighborhood. For transracial adoptees, the culture of their home is
identical or consistent with the dominant culture; "acting white"
comes naturally and, consequently, so does interpersonal or academic
success. Their interpersonal styles and behavioral patterns need not
conflict with those of white and other mainstream children; the academic ideals of their families need not conflict with those of the educational system. Thus, identifying with the dominant culture can itself
be a valuable coping skill that transracial adoptees can exercise without leaving their own culture at home.
If a transracial adoptee can identify with the culture of her white
parents, one must question whether such an identity enables her to
dents associate themselves with the dominant culture); Overmier, supra note 58, at 165 (finding
that biracial adolescents who identify with white middle-class values do better in school).
153. "Black youths, for example, are sometimes accused by their peers of 'acting white' simply because they study hard, go to the library or use standard English." Williams, supra note
133, at 26.
154. E.g., Fordham, supra note 151 (discussing empirical study which found that highachieving Black high school students generally dissociate themselves from Black culture).
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cope with racist attacks. White parents have not experienced the type
of racial oppression suffered by Black Americans and, accordingly,
have not needed to develop strategies for coping with such oppression. 155 Black Americans, on the other hand, have experienced racial
discrimination; their culture, which is informed by this experience,
teaches its members how to cope with it.156 Black children can learn
these coping skills from the culture and personal experience of Black
parents but, according to this argument, black children raised by white
157
parents will not learn the skills necessary to cope in a racist society.
This argument, while appealing, rests on a questionable premise. The
argument assumes that a person must experience racism first hand, or
at least must identify with the culture of people who have experienced
it directly, in order to teach a child how to cope with it.158 This lack
of experience with racial oppression, however, need not prevent white
parents from teaching coping skills to their Black children.
For several reasons, white parents can furnish a Black child with
skills to cope with racism. First, the experience of white parents may
benefit Black children by teaching these children to be less race con-
scious. 159 In American society, being white does not distinguish one
from the majority of successful people and, consequently, a white person has less reason to focus on her race. Not surprisingly then, white
parents tend to place less importance on the race of their Black
adoptees than do Black adoptive parents.160 In contrast, Black par-
ents have learned the importance of their race in this society and can,
in turn, teach their children to emphasize their race. But white par155. Having never been black, the white adoptive parents might not have been subjected to
the kinds of discriminatory treatment that have been the lot of black people. Therefore, they
might not have needed to maintain in their cognitive and psychic makeup the expectation of
probable oppressive treatment by whites....
when white adoptive parents are unable to transmit to the black adoptive child the
W
tendency toward doubt and the temporary suspension of trust, especially when dealing with
white persons, they are failing to satisfy the "psychosurvival" need of the black child.
Blacks need to have an inclination toward doubt of white persons as a basic attribute in
the fight against racism.... This doubt - call it "black paranoia" or what you will - is an
important and necessary aspect of black culture.
Chimezie, supranote 124, at 298-99, cited in Howard, supra note 2, at 540; see also Bowen, supra
note 7, at 510.
156. See Bowen, supra note 7, at 509-11.
157. POSITION PAPER I, supra note 8.
158. See Bowen, supra note 7, at 510 ("To suggest that the skills of survival, coping and
defense can be taught by those who have never themselves learned them is at best mystifying.").
159. Section III.A.2, supra, discussed race consciousness in relation to racial hostility from
others, concluding that, in some ways, placing little emphasis on race enables a black child to
cope with racism. This coping skill - a lower level of race consciousness - is a coping skill
transracial placement can provide.
160. "Other transracial adoptive parents tend to take a color-blind attitude to racial differences between the child and family and therefore deemphasize racial identity to the child. The
child in these circumstances usually acquires similar perceptions." McRoy & Freeman, supra
note 120, at 166.
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ents, by deemphasizing race, may enable a Black child to cope better
with racial attacks because the child may view the attacks less
personally. 161
Second, although white parents are unlikely to have experienced
racial discrimination, they could teach their Black child to view a racial insult as one might view other insults. White people, as individuals, have not been spared maltreatment from others, and white parents
routinely teach their children how to cope with insults from others.
Black children can learn and use these skills to cope with a variety of
offensive insults, including racist ones. For example, a person called
"commie" for protesting Vietnam or a woman referred to as "girl" by
her boss has some experience from which to empathize with her Black
child who is called "nigger" at school. A person who stutters, limps,
or cannot hear well also gains analogous experience that could benefit
a Black child. Must a parent have worn glasses, been fat, worn braces,
or been short in order to help her child who, while on the playground,
is called "four eyes," "fatso," "tinsel teeth," or "shrimp"? Consider
especially the coping skills that white parents employ when stigmatized for adopting Black children. 162 Thus, the dominant culture and
the personal experience of white parents provide them with a rich
source of coping skills that they can teach to their Black children.
Finally, having white parents may enable a Black child to cope
better with racism because, as a member of the dominant race, a white
parent's repudiation of Black inferiority may seem more credible than
the same message from a Black parent. Assume a Black child encounters a white person who tells her that she is inferior because of her
race. To cope with the remark, the child needs to dismiss or disbelieve
it in order to protect her self-esteem. The child should believe that her
Blackness is not a mark of shame but rather a mark of beauty, or at
least an incidental physical attribute. She can learn this belief or "coping skill" from her parents. A message of racial equality from a white
parent carries a certain credibility over the same message from a Black
parent because the Black parent has a greater personal interest in refuting white superiority than does the white parent. True, white parents have an interest in racial equality in order to protect their Black
child. From the child's perspective, however, a Black parent might
espouse racial equality for the parent's sake as well as for the child's
sake; a white parent, by contrast, diminishes her own status relative to
the Black race by advancing the equality of the races. Thus, a white
parent's denial of Black inferiority may be more believable because it
is less self-serving. At the least, a white parent's motive in denying
racial inferiority will appear to be solely to support and show love for
161. See, e.g., id. at 166.
162. White families who adopt Black children are sometimes subjected to intense bigotry.
Bowen, supra note 7, at 504.
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the child. Such a gesture might itself benefit the child. In this way,
the race of white parents need not hinder their ability to help their
Black child cope with racism and, arguably, may give them an
advantage.
Although questions of racial and personality development do not
lend themselves well to firm conclusions, the discussion of the preceding two sections has, consistent with available empirical data, raised
serious questions concerning the wisdom of racial-matching policies.
Both in terms of racial identity and coping skills, the ability of white
parents to protect their Black child's interests is not clearly inferior to
that of Black parents.
The arguments in this and the previous section should not imply
that placement with white parents is necessarily better than placement
with Black parents; both offer benefits. 163 These arguments are intended to demonstrate the lack of justification for racial matching, not
the superiority of transracial placement. In addition, a white preference would cause similar psychological costs that children currently
suffer from racial matching in the adoption process 1 " and in custody
proceedings.1 65 If courts and placement agencies are to fulfill their
duty to serve the best interests of Black children, they should consider
the benefits of transracial placement. If such benefits are at least comparable to those of Black-parent placement, this fact undermines the
basis for favoring Black placement. Nor is a shift to a transracial preference policy warranted. By ignoring race when placing a Black child,
courts and agencies would avoid the concrete harms of current policies
without subjecting the child to substantiated risks. Thus, when placing a Black child, courts and agencies should not favor Black placement over white.
C.
The Interests of Biracial Children
The NABSW argues that biracial children should be treated as
completely black and, accordingly, should not be placed with white
parents.166 Consistent with this view, courts and adoption agencies
usually categorize biracial children as black when considering placement.1 67 The primary justification for this treatment is that, in the
eyes of American society, a biracial child is black1 68 and, therefore,
163. See infra notes 188, 191.
164. See supra sections ILA and II.B. 1.
165. See supra section II.B.2.
166. Bowen, supranote 7, at 505 n.88. See also supra note 9 for an explanation of this Note's
use of the terms Black and black.
167. See supra section I.C.
168. "Society has historically tended to categorize any person who has any amount of Negro
blood as a member of the black, or Negro, race. Therefore, when whites married blacks, their
children, regardless of skin color, became black - not black-white." McRoy & Freeman, supra
note 120, at 165; see also JAMES F. DAVIS, WHO Is BLACK?: ONE NATION'S DEFINITION (1991)
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must identify positively with being black and must be able to cope
with discrimination toward her as a black person. t69 This section
challenges the presumption that biracial children should be treated as
black and placed with black parents.
70
If society treats biracial children as black, any risks to biracial children from being placed with white parents are at least as questionable
as the risks for black children. To the extent that biracial and black
children differ, avoiding "trans"-racial
l7
placement of biracial chil-
dren is even less justifiable. A biracial child is as white as she is black
t72
and thus "bears a legitimate claim to membership in both groups.'
The racial duality of such a child suggests that her interests may be
best served, or at least comparably served, by a positive identification
with both of her cultural heritages, both to the same extent. 73 Indeed,
many biracial persons identify themselves as neither black or white,
74
1
but rather as "mixed."
By treating a biracial child as black, the courts decide first, that the
biracial child should identify herself as one and only one race, and
(American society generally defines Black according to a one-drop rule - that a person is Black
if he has any traceable Black-African ancestry); Mahoney, supra note 15, at 487 n. 1; Perry, supra
note 2, at 65; Itabari Njeri, Callfor Census Category CreatesInterracialDebate, L.A. TIMES, Jan.
13, 1991, at El ('[S]ocially, [in America,] any known African ancestry makes you black."),
Statutory definitions provided that a person is a member of a minority group either if he has a
certain percentage of minority blood or any trace whatsoever. McRoy & Freeman, supra note
120, at 165.
169. See, eg., In re Davis, 465 A.2d 614 (Pa. 1983). The Supreme Court of Pennsylvania, in
affirming the trial court's placement of a biracial child with black foster parents instead of white
grandparents, cited the testimony of the black foster care mother that the biracial child would be
treated as black and is therefore black. As a black, her testimony continued, the child needs a
black parent to develop a healthy Black identity. 465 A.2d at 626-27.
Itabari Njeri expresses a contrary view rejecting the societal definition that any Black ancestry makes one Black:
[I]t is not what one is considered to be or [how one is] treated that determines who we are,
because people of color are always considered to be ignorant and lazy and lesser than European Americans. If we [mixed-race Americans] are to accept their considerations and perspectives of our identity, then we have beaten ourselves before we've started the race.
Njeri, supra note 168, at E9-EI0.
170. See Bowen, supranote 7, at 505 n.88 ("The NABSW position allows that Black children
includes children of Black-white parentage."); supra section I.B.
171. Indeed, as this section suggests, the placement of biracial children with white parents is
as much a same race placement as it is transracial. See also Bartholet, supra note 6, at 1173 n.8
("These biracial children can be seen as at least a partial racial match with their white adoptive
parents.").
172. Philip M. Brown, BiracialIdentity and Social Marginality, 7 CHILD AND ADOLESCENT
SOC. WORK 319, 325 (1990); see also Overmier, supra note 58, at 158 ("[C]hildren of black/white
unions.., are a unique group of mixed-race young people who defy simple racial classification
and who have legitimate claims to both majority and minority status.").
173. "The major task for biracial adolescents becomes integrating dual racial identifications
into a single identity that affirms the positive aspects of each heritage .... Overmier, supra note
58, at 170.
174. See McRoy & Freeman, supra note 120, at 165; see also Njeri, supra note 168, at El
("[A] new generation of ethnically and racially mixed Americans is demanding the creation of a
multiracial category for the U.S. Census.").
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second, that this race should be black. For a biracial child, who needs
exposure to both racial backgrounds 75 and who needs to accept both
cultural heritages, 176 choosing an all-black identity may contribute to
1 78
a certain degree of identity confusion 177 and self-rejection.
Although American society has historically defined biracial people
as black, 179 it is questionable whether black people, as a rule, view
biracial people in this way. In fact, biracial children can experience
rejection and alienation from black people as well as from white peo-
ple.180 At school, black and white students may jeer biracial children
for "trying to 'be something they're not' or for thinking of themselves
as being 'better than other blacks' because of having a white parent."1 81 At home, black and white family members may reject biracial
children because they view them as the product of accident or poor
judgment. 8 2 In placing a biracial child, courts and adoption agencies
ought to recognize that either alternative parents or white parents
-
placing her with black
may cause difficulties for the child, both by
denying her access to one culture and by subjecting her to alienation
from the culture within which she is placed. In either event, placing a
biracial child in a black home will not necessarily prevent her from
experiencing "social marginality."'
83
175. Mixed-race children, in order to identify positively with their mixed background, need
both black and white role models and peers. See McRoy & Freeman, supra note 120, at 166.
176. See Overmier, supra note 58, at 170 (arguing that, to avoid developing negative identities, biracial adolescents need to "integrat[e] dual racial identifications into a single identity that
affirms the positive aspects of each heritage").
177. A biracial child experiences unique stresses in developing her self-identity because she
confronts social pressures that attempt to force her into one racial category that is contrary to
her own self-perception as a member of both groups. Brown, supra note 172, at 324-25. Courts
ought not contribute to these children's anxiety and confusion.
178. One biracial college student, Nia Mason, gives a personal account of how societal pressures to be Black led her to reject her white heritage only to realize later that accepting her white
background was necessary for accepting herself:
I decided, if I'm [B]lack, then [see you] later for these white folks.... I rejected "white"
adamantly .... Later I realized that that wasn't quite on target either. It certainly didn't
make me feel better...
ecause you can't really reject who you are, you have to come to terms with who you are
in terms of your race ....
Patricia Kessel, Growing Up Integrated (Are You Black?), CRISIS, Mar. 1988, at 15, 18.
In his doctoral research, Professor Marvin Arnold studied 28 biracial children. The findings
indicated that most biracial children, when given a choice, identified themselves as mixed as
opposed to black or white. Those who identified themselves as mixed demonstrated a greater
degree of emotional and psychiatric stability, and a higher overall self-concept, than those who
identified as black or white. Marvin C. Arnold, The Effects of Racial Identity on Self-Concept in
Interracial Children (1984) (unpublished Ph.D. dissertation, Saint Louis University), abstracted
in 45 DISSERTATIONS ABSTRACTS INTL. No. 9, at 3000-A (1984).
179.
180.
181.
182.
183.
See supra note 169.
Brown, supra note 172, at 333.
McRoy & Freeman, supra note 120, at 166 (footnote omitted).
Overmier, supra note 58, at 162.
A socially marginal person, such as a member of a minority group, does "not fit neatly
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In addition, a biracial child may gain certain benefits from white
parents. A biracial child has an interest in identifying positively with
her mixed heritage. While black parents who adopt biracial children
usually perceive the children as black, white adoptive parents tend to
view their biracial children as mixed. 184 Thus, a biracial child with
white parents may be more likely to identify as mixed than one placed
with black parents. 185 By accepting her multiracial heritage, a biracial
186
child may have a better chance to accept herself as a whole.
Furthermore, by learning the dominant culture, a biracial child
placed in a white home may experience less racist hostility in life than
a biracial child raised in a black home. Opponents of transracial adop187
tion argue that black children need to cope with a racist society.
The racist attitudes of people toward the child may harm the child and
thus are relevant to the question of the child's interests. Presumably,
if the attitudes of others were less hostile, there would be less danger to
the biracial child's psyche. Persons harboring prejudices toward Black
people and Black culture likely would feel less hostile toward a biracial
person who exhibited traits and values associated with the dominant
culture. White parents can acculturate a biracial child to the domi-
nant culture. Thus, such a child will probably encounter less racism
and less prejudice-based obstacles to opportunities and advancement. 188 In this way, a biracial child may have less need for coping
skills if placed with white parents.
Studies of biracial adolescents indicate that those who identify
more completely with the dominant culture tend to be more achievement oriented and attain greater academic success. 189 On the other
into mainstream White society." Brown, supra note 172, at 319. A biracial person experiences
even greater marginality since he is not easily racially categorized by those with whom he interacts. Id. at 324.
184. Bowen, supra note 7, at 499.
185. Id. at 500.
186. Besides fostering an identity as a black person, a black parent, due to resentment over
discrimination, might explicitly or subtly teach a biracial child similarly to resent white people
and the white within him. As Professor Schneider asks, "[w]ill the bitterness that blacks may
feel about the black experience in America be difficult for a child of an interracial marriage who
is in the custody of a black parent to cope with?" Schneider, supranote 16, at 139. But see Njeri,
supra note 168, at E10 ("[M]ultiracial identity .... (represents] a repudiation of blackness born
of [an] unwillingness to identify with a despised minority.").
187. See Bowen, supra note 7, at 505.
188. This argument is not intended to favor white culture over Black culture; rather, it is
intended to show that, if the state considers societal prejudice when deciding whether to allow
particular parent-child relationships, then the benefits to the child that stem from such relationships have as much relevance as the costs.
189. Overmier writes:
The majority of biracial adolescents are well aware of racial prejudice and barriers to mobility. Therefore, they shape their current academic behavior and future aspirations accordingly. Those biracial teens who overidentify with their version of the black ghetto culture
adopt a casual attitude toward their studies, express anti-achievement values, and fear rejection by their black peers if they are perceived as 'bookworms.' For those teens who identify
with the white middle-class culture, educational achievement may be consistent with their
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hand, feigning white culture when one identifies with Black culture is
unhealthy and represents the "pathos of stigma." 190 If a child internally identifies with white culture, however, behaving in accordance
with it does not represent pretense. For a biracial child especially,
identifying with white culture need not be pathological. Thus, learning and exhibiting dominant culture traits, which may result more
often when children are raised by white parents, represents a type of
coping skill by which biracial children can achieve success without
self-rejection. 191
In sum, biracial children have a legitimate genetic and psychological claim to both their black and white heritage. The need for biracial
children to identify positively with Black culture suggests the desirability of placing them with black parents. The equally legitimate need
to identify positively with white culture, however, speaks in favor of
placing biracial children with white parents. Two further considerations undermine the policy of favoring Black placement for biracial
children. First, although biracial children are generally viewed as
black by society at large, they are not always accepted as black by
black people. Second, placing biracial children with white parents
may afford certain benefits over placing them with Black parents.
They are more likely to identify with their mixed heritage rather than
as black alone. In at least this way, the biracial child may accept herself more completely. Furthermore, with respect to coping skills in a
racist society, biracial children may acquire beneficial skills from white
parents. Thus, for biracial children, placement with white parents is,
on balance, as much in their interests as placement with black parents.
D. The Interests of Black People as a Group
The NABSW has described transracial placement as a form of
"cultural genocide." 192 Black people as a cultural group, it argues,
have an interest in making decisions concerning Black people and in
preserving Black people as a distinct cultural group. 193 Transracially
placed Black children, the NABSW fears, will not identify as Black in
peers. However, they may drive themselves to academic excellence to "prove" they are "as
smart as" their white peers.
Overmier, supra note 58, at 165 (citation omitted).
190. Brown, supra note 172, at 332.
191. To observe that the dominant culture embodies values better suited than those of Black
culture for accomplishment in this society is not to accept this disparity as appropriate or inevitable. In light of the educational and economic opportunities denied to Black people by the dominant class, it is understandable for Black culture to reject dominant cultural values. In the
meantime, however, if courts are to recognize racial prejudice by preferring same-race placement,
they should also recognize the "coping skills" that a child can gain from the dominant culture.
192. See supra note 15.
193. See Bowen, supra note 7, at 501; Howard, supra note 2, at 530.
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the sense of identifying with Black culture.1 94 Rather, these children
will assimilate into the dominant culture and, by so doing, contribute
to the dilution and decline of Black cultural existence.195 In order to
preserve Black culture, Black children should be placed only into
Black homes where they can join and strengthen the Black commu-
nity. This cultural genocide argument is the focus of this section.
1. The Necessity and Legitimacy of PreservingBlack Culture
Through Child Placement
If Black people have an interest in preserving Black culture, two
questions arise. First, does transracial placement jeopardize Black
culture? Second, should courts and agencies use child placement to
preserve Black culture? Unless both questions have affirmative an-
swers, courts and agencies should not consider Black cultural interests
when placing a child.
Although cultural interests need not affect, 196 or may even conflict
with, 197 the interests of individual children, cultural interests have in-
fluenced the child-placement process. By enacting the Indian Child
Welfare Act of 1978,198 for example, Congress recognized a substantial interest in preserving Native-American culture and accorded significant rights to Native-American communities to determine the
placement of Native-American children. Similarly, commentators
have argued, giving weight to Black cultural interests is justified in the
child-placement context as a means to preserve Black culture.' 99
Professor Margaret Howard argues, however, that Native-American culture is at a significantly greater risk of extinction than Black
culture.2°° The rate at which agencies have placed Native-American
children in mainstream society is so great that it has truly threatened
194. Bowen, supra note 7, at 506. By Black children, it should be noted, the NABSW intends t6 include biracial children. Bowen, supra note 7, at 505 n.88.
195. See Howard, supra note 2, at 531 ("Because transracial adoption removes children from
their racial and ethnic groups, it poses some threat to the groups' interests in continuity.").
196. Howard separates the interests of Black people as a cultural group and the best interests
of an individual Black child. Id. at 530; see also supra section III.A.I. •
197. Howard, supra note 2, at 503.
198. Pub. L. No. 95-608, 92 Stat. 3069 (codified at 25 U.S.C. §§ 1901-1963 (1988)).
199. Professor Bowen argues that the history of the Black experience is analogous to that of
Native Americans. Both have experienced tremendous discrimination, segregation, and oppression; both have suffered from inferior educational systems and residential areas; and both have
been viewed as discrete and insular groups. Bowen, supra note 7, at 522 n.185; cf. Mahoney,
supra note 15, at 500 ("The NABSW is correct in their assumption that if white parents who
adopt Black children treat them as if they are exactly the same as white children except for their
color, something will be lost.").
200. Howard, supra note 2, at 530-33. Perhaps the difference between the threat to NativeAmerican culture and the threat to Black culture is reflected by the fact that, while Black Americans disagree on the desirability of transracial placement, Native Americans stand largely unified
against it. See Howard, supra note 2, at 531 (citations omitted). But see supra note 199 (comparing the Native-American experience to the Black experience).
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the continued existence of Native Americans as a distinct ethnic
group. 20 ' In contrast, the number of transracial placements of Black
children is insignificant. 20 2 Thus, transracial placement does not similarly jeopardize the interests of Black people in their continued existence as a cultural group. 203 This argument does not mean that Black
culture is free from risk, nor that Black culture is unworthy of preservation. The point is simply that the enemy of Black culture is not
2 °4
transracial placement.
Even if transracial placement did threaten Black culture, the bestinterests standard does not permit courts and agencies to advance cultural interests at the expense of an individual child's interests. The
cultural genocide argument is premised on an understanding that cultural interests are inconsistent with, or at least go beyond, an individual Black child's interests. 205 If cultural interests were no different
than those of the individual child, courts and agencies would already
protect Black culture under the best-interests standard without having
to address group interests in a child-placement determination. Considering cultural interests undermines the child's interests. In some
cases, a court could forgo a transracial placement that is in a child's
best interests because of its concern for cultural interests. To compromise a child's welfare in the name of culture, especially when the cultural benefit is slight or nonexistent, is inimical to the purpose of child
20 6
placement and violates the best-interests standard mandated by law.
Furthermore, even if the law allowed courts and agencies to bal201. By the mid 1970s, the rate of transracial placement of Native-American children had
become" 'alarming,' 'shocking,' and a 'crisis... of massive proportions.'" Id. at 520 (footnotes
omitted).
202. Id. at 532 ("[T]he charge [of cultural genocide] in [the adoption] context is simply specious - so few black children have been placed in white homes that no genuine threat exists to
the continuance of blacks as a cultural, racial, or ethnic group."); Mahoney, supra note 15, at 501
("Unless... the numbers of children adopted transracially were to increase enormously beyond
what they currently are, the culture of African-Americans will not be destroyed.").
203. Howard, supra note 2, at 532-33.
204. One writer identifies other reasons for the erosion of Black culture. These include the
lack of Black history in the school curricula, the fallacious images of Black people conveyed by
textbooks, and the separation of Black history from American history. Samuel L. Banks, Blacks
in a Multiethnic Social Studies Curriculum: A Critical Assessment, 44 J. NEGRO EDUC. 82
(1975).
205. The President of NABSW writes:
The lateral transfer of our children to white families is not in our best interest. Having
white families raise our children to be white is at least a hostile gesture toward us as a people
and at best the ultimate gesture of disrespect for our heritage as African people....
It is their aim to raise Black children with white minds....
...
We are on the right side of the transracial adoption issue. Our children are our
future.
See Morris F.X. Jeff, Jr., President's Message, NATL. ASSN. BLACK Soc. WORKERS NEWSL.,
Spring 1988, at 1-2 (emphasis added).
206. See Bartholet, supra note 6, at 1237 ("[A]doption is not supposed to be about parent or
community rights and interests, but rather about serving the best interests of children.").
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ance cultural interests against the child's interests in placement pro-
ceedings, the child's interests would substantially outweigh cultural
interests. A child whose placement is delayed suffers immediate, con-
crete, and probably irreparable harm. Black culture, by contrast, if
harmed at all, suffers the minute and diffuse harm that results when a
de minimis number of Black children are placed in white homes.
Therefore, advancing cultural interests in the child-placement process
compromises the interests of individual Black children and is not necessary for Black cultural preservation.
2.
Defining Black Culture: Why Are TransraciallyPlaced
Children Less "'Black"?
The NABSW is concerned that transracially placed Black children
will be raised to have "white minds.
' 20 7
As a corollary, there must be
a distinct "Black mind." What this Black identity entails, however, is
far from clear. Indeed, whether Black people comprise an identifiable
cohesive culture or share a set of common values is questionable. To
the extent that Black people do have common interests, why do transracially placed Blacks not share such interests?
Black people do not comprise a discrete culture. 20 8 Rather, the
Black community is diverse in terms of the practices and values of the
people within it. Black people are spread across geographic and class
lines. 20 9 Black people do not share a common language, a unifying
religion, or a representative leadership. 210 On significant social and
political issues, such as transracial adoption, there is no consensus
among Black people. 2 1I As one commentator observes, "'[e]ach black
person responds differently to [her] socialization and experience in
207. See supra note 205.
208. Compare, for example, the Old Order Amish discussed in Wisconsin v. Yoder, 406 U.S.
205 (1972). The Supreme Court of the United States upheld the right of Amish parents to keep
their children home after the eighth grade in violation of state law. The Court found that the law
requiring the Amish to send their children to school beyond the eighth grade "carries with it a
very real threat of undermining the Amish community and religious practice." 406 U.S. at 218.
Black people may have a similar interest in cultural preservation and self-determination and thus
may have a legitimate interest in having Black children placed within the Black community. The
analogy, however, is flawed to the extent the Black community does not constitute a cohesive
group with an identifiable leadership or identifiable interests, at least not to the extent of discrete
groups such as the Amish. See Schneider, supra note 16, at 1397. The Amish in Yoder are
homogenous in culture with an identifiable leadership. See id. Amish communities systematically resist influence from mainstream society and even divide themselves, over doctrinal disputes, into separate communities. See id. Furthermore, Amish communities are geographically
localized and homogenous in social class. See id. at 1398.
209. See id.
210. See id. at 1398; T. Garner & D.L. Rubin, Middle Class Blacks' Perceptions of Dialect
and Style Shifting: The Case of Southern Attorneys, 5 J. LANGUAGE & SOC. PSYCHOL. 33, 47 n. 1
(1986) ("The term[] 'Black English' ... [denotes a] fiction[]. There is no monolithic language
variety typical of black Americans .... ").
211. Bowen, supra note 7, at 501; Howard, supra note 2, at 531; O'Brien, supra note 11, at
493.
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terms of being black.'
Note
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Child Placement
",212
Despite this diversity, the NABSW, as if speaking for all Black
people, charge that Blacks with white parents are less Black, indeed,
that they are white. Such a position is consistent with other Black
voices who seek to define the "correct" Black identity to the exclusion
of others. 213 The "white" Blacks often include those who strive for
individual achievement and aspire to career positions traditionally reserved for the dominant class. 2 14 These Black people, however, are
not less Black and need not reject their racial heritage, although they
often reject the "form of social fascism" 2 15 by which other Blacks impugn their racial identity as less than authentic simply because they
seek lifestyles traditionally reserved for whites. Indeed, it is the attitude on the part of some Blacks who call into question the Black identity of those who "make it" that is counterproductive to the condition
of Black people. 21 6 Being Black should not limit career aspirations or
require a particular political viewpoint. 2 17 Accordingly, Black children placed with white parents, many of whom will join the ranks of
the middle class, are Black nonetheless.
As to biracial children raised by white parents, the NABSW posi212. Williams, supra note 133, at A26 (quoting Dr. Robert Carter, associate professor of
psychology and elementary education at Columbia University).
213. For example, in reaction to the televised nomination hearings of Justice Clarence
Thomas, "[m]any blacks questioned the 'blackness' of a man who embraces a conservative philosophy and is married to a white woman. To still others, his accuser, Anita F. Hill, a law
professor at the University of Oklahoma, failed the 'blackness' test by betraying another member
of her race." Id. at Al.
Stephen L. Carter, a professor of law at Yale University, writes that "[Blacks who ostracize
other Blacks] really do believe that there is an important sense in which people of color who hold
the wrong views have no right to call themselves people of color. They really do believe that the
dissenters are traitors, Uncle Toms, merely biologically black, not bona fide representatives of
their people." STEPHEN L. CARTER, REFLECTIONS OF AN AFFIRMATIVE ACTION BABY 131
(1991).
214. One 42-year-old Black attorney recounts how her success and upper-class lifestyle has,
in the eyes of other Blacks, called her racial identity into question: "'I've had black folks come
up to me and say I'm not black because of the way I live[.] It hurts, but I don't argue. In my
heart, I'm black." Williams, supra note 133, at 26.
215. The term socialfascism was used by Julius Lester, a professor of Judaic and AfricanAmerican Studies at the University of Massachusetts, when commenting on a 1988 incident in
which members of the African-American Studies department, in which he was a member, sought
his reassignment after he criticized novelist James Baldwin. Lester continued, "is black identity
so problematic that one is to be judged as 'anti-Negro[ ]' for being critical of Baldwin or Jesse
Jackson?" Id. (quoting Prof. Julius Lester).
216. Cf Gale, supra note 133, at 19 ("When the media insist[] upon equating the term
'black' with what is less desirable, they are creating a self-fulfilling prophecy ....
One's self
expectations are drastically reduced.").
217. See infra note 220 (quoting Prof. Lester). But see Williams, supra note 133 (quoting
Roger Wilkins, a professor of history at George Mason University):
Every oppressed community ... has drawn lines and says certain behavior puts you
outside the community[.] For black Americans who live in a society where racism exists, it
is legitimate to set parameters. In arguing how best we struggle, there is some political and
intellectual behavior in which you engage that keeps you from being a black person.
Id. at A26.
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tion appears paradoxical. Although half-white, such children are
black; at the same time, due to their "white" upbringing, such children
are white. How does such a child, raised by at least one parent who is
a racial "match," most likely her mother, 2 18 simultaneously lose her
whiteness on the outside and betray her blackness on the inside? It
seems it is the NABSW position that creates the risk of racial confusion for biracial children.
The diversity of Black people's attitudes toward Black identity
may be inevitable when the commonality of Black people primarily
depends on a physical feature rather than adherence to a particular
religious doctrine, 2 19 political platform, or other agenda or interest.
Whatever the reason, the claim that transracially placed Black children do not have a Black identity is suspect. Indeed, such racial stere220
otyping is akin to that which led to the oppression of Black people.
In any event, the NABSW's efforts to define Blackness, an "essentially
adult agenda of promoting racial separation," 2 2z t has no place in the
child-placement process. If, as this Note suggests, skin color is separate from cultural affiliation, a black or biracial child placed in a white
home can learn the culture of her white parents while maintaining a
realistic and healthy view toward her racial identity.
3. Benefits of TransracialPlacementfor Black People and Society
Assuming Black people have a cohesive culture and assuming
transracial placement has a significant influence on it, transracial
placement does not necessarily harm Black culture. In fact, Black
people, and American society as a whole, may benefit from transracial
placement. Black people as a group may benefit from transracial
placement in at least two respects: career success and social
integration.
Transracial placement may help Black people achieve career success. Black-American culture has developed in a society that has denied Black people educational and career opportunities. Deprived of
these opportunities, Black people, as a group, are less experienced in
meeting the challenges of school and the American marketplace. Furthermore, in the face of majority oppression, Black people have reason
218. In most interracial marriages, the father is Black and the mother is white. See Perry,
supra note 2, at 61 n.32.
219. See supra note 208 for the discussion of the Amish.
220. In a telephone interview with Lena Williams of the New York Times, Lester stated that
"[h]aving been involved in the civil rights movement, I didn't fight against whites trying to limit
and define me to turn around and have blacks try to limit and define me." Williams, supra note
133, at A26 (quoting Prof. Lester).
221. Bartholet, supra note 6, at 1256. Professor Bartholet observes that "Black leaders in the
adoption world originally promoted racial matching in the historical context of the black nationalism movement that gained prominence in the latter part of the 1960s, with its calls for black
power and black self-determination." Id. at 1233.
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to reject the values represented in the dominant culture. 222 Informed
by this experience, Black culture may be less well suited to academic
and career achievement in mainstream society. Transracial placement
can aid in reversing this trend by creating opportunities for Black children to learn the skills and values with which to achieve academic and
career advancement.
Transracial placement may also reduce racism by increasing understanding through integration. Transracial placement helps to
bridge the gap between Black and white people and may reduce racial
tension and the discriminatory obstacles to opportunities that Black
people continue to encounter in American society. 223 A Black child
who is raised by white parents tends to be more understanding of
white people and culture. A transracially placed child, and a biracial
child in particular, is in the best position to see the commonality between Black and white people and the irrationality of racial barriers to
communication, respect, and understanding. 224 Similarly, by exposing
white people to a Black child, transracial placement can increase the
understanding and sensitivity of white people toward Blacks. By reducing racial prejudice, Black people - including Black children have greater choice in what they pursue and accomplish and have less
need for the coping skills argued for by the NABSW.
Furthermore, Black people need not obtain these benefits at the
expense of Black cultural preservation. The skills and values neces-
sary for individual achievement should be free from culture; a Black
person who succeeds is still Black.2 25 As Black people attain greater
222. See, e.g., Kool Moe Dee, White Supremacy Imposed False Values on Afrikans, L.A.
TIMES, May 24, 1992, at M2 (advocating rejection of "a way of life that was imposed on us
through slavery").
223. Howard observes:
[B]oth white and non-white children raised in mixed-race families were less likely to have
pro-white attitudes or to associate "white" with positive and desirable characteristics than
were both white and non-white children generally. Thus, the practice of transracial adoption attacked as destroying "psychosurvival skills" of black children may in itself contribute
to such a change in attitudes that those skills become superfluous.
Howard, supra note 2, at 540.
224. In her doctoral research, Christine Kerwin studied racial identity development in biracial school-age children. The majority of the subjects demonstrated an increased sensitivity to
the views, values, and cultures of Black and white people, and tended to observe more similarities
than differences between the two groups. Christine Kerwin, Racial Identity Development in
Biracial Children of Black/White Racial Heritage (1991) (unpublished Ph.D. dissertation, Fordham University), abstractedin 52 DISSERTATION ABSTRACTS INTL. No.7, at 2469-A (1992).
225. Garner and Rubin conducted a series of in-depth interviews with several southern Black
attorneys in order to understand how they were able to use Standard English (SE) without disavowing their Black cultural identities. The subjects reported that they disassociated SE from
cultural identification:
Only two respondents even partially equated SE with the way whites spoke. The others
thought there was no SE that was the predominant province of Italians, Irish, blacks or
whites. Rather, SE usage identified the sophisticated and the educated, and an individual
would use it to demonstrate that he or she was both....
...
Since SE is not white English, and is rather an educated person's tool for survival,
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achievement, Black culture can incorporate this experience and, by so
doing, adapt to the challenges of modem America. Thus, with the
help of transracial placement, Black culture can undo the effects of
racial discrimination and not only survive, but flourish. 226
Society also benefits by improving the condition of Black people.
The productive participation of Black people in the economy promotes
the prosperity of the United States. In addition, Black prosperity
should reduce the societal burden of Black poverty and crime. Moreover, reducing racial tension should promote positive interracial relations whereby we can celebrate, rather than fear, cultural diversity.
Thus, if interests other than those of the particular child are to
enter child-placement decisions, courts and agencies should recognize
that transracial placement may serve interests as legitimate for Black
people as those purportedly served by same-race placement. In addition, transracial placement offers benefits for society as a whole. For
these reasons, given the plausible and reported successes of transracial
placements in contrast to the high costs of racial-matching policies in
adoption proceedings 227 and custody disputes, 228 courts and agencies
should not consider race when placing a black or biracial child.
CONCLUSION
States rightfully charge courts and placement agencies with safeguarding the best interests of the child. By engaging in racial matching, however, courts and agencies cause serious harm to Black
children. These children remain in institutional or foster care while
white parents are available. The children become hard to place by
virtue of their increased age and adjustment problems relating to the
amount of time under state care.
In the judicial process, courts tend to place excessive emphasis on
race. The discretionary nature of the race factor also encourages
harmful litigation over child custody and racial identity. If courts and
agencies did not consider race in placing Black children, they would
these professionals have found a way to maintain cultural identity while at the same time
communicating credibility in the dominant culture.
Garner & Rubin, supra note 210, at 46.
In her doctoral research, Deborah Broadway studied the childrearing practices of Black middie-class families. The study found that the participating families raised their children to function competently in middle-class white society while maintaining psychological and cultural ties
to the Black community. Deborah C. Broadway, A Study of Middle Class Black Children and
Their Families: Aspirations for Children, Perceptions of Success and the Role of Culture (1987)
(unpublished Ph.D. dissertation, Ohio State University), abstracted in 48 DISSERTATION ABSTRACTS INTL. No.1 at 42-A (1987).
226. Recall that this assumes that transracial placements occur in sufficient numbers to affect
Black culture. As discussed above, however, transracial placement is unlikely to have a significant effect on Black culture. See supra section III.D.1.
227. See supra Part II.
228. See supra section II.B.
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eliminate or greatly minimize these harms. Therefore, if courts and
agencies are to protect the best interests of Black children, the consideration of race is justifiable only if the risks of transracial placement
outweigh the concrete harms of racial matching. As this Note has
argued, however, transracial placement is an equally attractive alternative to inracial placement for black and biracial children, and raceneutral placement is a far better alternative to the costs of racial
matching.
This Note has also considered the argument that the preservation
of Black culture justifies racial matching. It is doubtful whether transracial placement threatens Black culture and, even if it did, the bestinterests standard requires cultural interests to yield to the interests of
the individual child in a child-placement proceeding. This Note has
also argued that transracial adoptees are no less Black than other
Black children. Finally, if transracial placement does affect the nature
of Black culture, it may in fact contribute positively to the development of Black people and Black culture.
The use of race in the child-placement process may be well intentioned, but such policies lack both empirical and reasoned justification. Therefore, courts and agencies should ignore the race of a child
when making placement decisions. Instead, courts and agencies
should place Black children as soon as possible in the arms whatever color - of loving and capable parents. As one court recognized, if these "children are raised in a happy and stable home, they
will be able to cope with prejudice and hopefully learn that people are
'229
unique individuals who should be judged as such.
229. Lucas v. Kreischer, 299 A.2d 243, 246 (Pa. 1973) (quoting Judge Hoffman's unpublished dissent).
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